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Full text of "North Carolina Register v.14 no. 12 (12/15/1999)"

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NORTH CAROLINA 



"■"s»«-.^ 



V~ 



// 




REGISTER 



VOLUME 14 




ISSUE 12 



December 15, 1999 



Pages 953 - 1088 \ 






DEC 2 1999^ 



IN Tins ISSUE 

Executive Order 

Revenue - Tax Review Board 
\ Administrative Hearings, Office of 

Environment and Natural Resources 

Geologists, Board of Licensing of 

Health and Human Services 

Insurance 
' Justice 

Labor ' 

Landscape Architects, Board 

Midwifery Joint Committee 

Nursing, Board of *' 

Public Educatioa 

Refrigeration Exarniners 

Secretary of State 

Transportation 

Rules Review Commission 

Contested Case Decisions 



KATHRlK'cR. EVERETT 

LAWLlR'-iiRY 




PUBLISHED BY 

The Office of Administrative Hearings 

Rules Division 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

Telephone (919) 733-2678 

Fax (919) 733-3462 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its 
components, consult with the agencies below. The bolded headings are typical issues which the given 
agency can address, but are not inclusive. 

Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc. 

Office of Administrative Hearings ■-. >„- 

Rules Division A \^%^i% A .O ^TN 



Capehart-Crocker House w ^ 

424 North Blount Street 

Raleigh, North Carolina 27601-2817 



contact: Molly Masich, Director APA Services 
/. / Ruby Creech, Publications Coordinator 



(919)733-2678 

(919) 733-3462 FAX - 

nimasich@oah. state. nc 
rcreech@oah. state. nc. us 



Hi kj // p A 

Fiscal Notes & Economic Analysis ""iJ^^&^i;,,^..^ 



Office of State Budget and Management 

1 1 6 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Warren Plonk, Economist III 



M 



Rule Review and Legal Issues 

Rules Review Commission 

U ^ 1307 Glenwood Ave., Suite 159 

-^ Raleigh, North Carolina 27605 




(919)733-7061 
(919) 733-0640 FAX 

wplonk@osbm.state.nc 

» » li ijur 

ITI0M 



\ 



^»% 



(919)733-2721 
(919) 733-9415 FAX 



V contact: Joe DeLuca Jr., Staff Director Counsel 
' .^ Bobby Bryan, Staff Attorney 



"■I* 



Legislative Process Concerning Rule-making '^ '^'^11% 

Joint Legislative Administrative Procedure Oversight Committee 



545 Legislative Office Building 
300 North Salisbury Street 
Raleigh, North Carolina 2761 1 

contact: Mary Shuping, Staff Liaison 



•^^^"^ *W iwB^^. 



'Ai 



(919)733-2578 
:. (919) 715-5460 FAX 

marys@ins.ncga.state.nc.us y' 




County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 

contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 

215 North Dawson Street (919) 715-4000 

Raleigh, North Carolina 27603 

contact: Paula Thomas 



This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



NORTH CAROLINA 
REGISTER 




Volume 14, Issue 12 
Pages 953 - 1088 



December 15, 1999 



This issue contains documents officially filed 
through November 22, 1999. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

6714 Mail Service Center 

Raleigh, NC 27699-6714 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Linda Dupree, Editorial Assistant 

Jessica Flov/ers, Editorial Assistant 



IN THIS ISSUE 
I. EXECUTIVE ORDER 

Executive Order 165 953 

II. IN ADDITION 

Revenue - Tax Review Board 954 - 956 

III. RULE-MAKING PROCEEDINGS 
Environment and Natural Resources 

Marine Fisheries Commission 958 

Insurance 

Consumer Services Division 957 

Engineering & Building Codes Division .... 957 

Life and Health Division 957 

Multiple Employer Welfare Arrangements . . 957 

Justice 
Sheriffs' Education & Training Standards. . . 957 - 958 

Licensing Boards 
Midwifery Joint Committee 958 

IV. PROPOSED RULES 
Administrative Hearings, Office of 

General 1029 - 1030 

Hearings Division 1033 - 1034 

Rules Division 10.30 - 1033 

Environment and Natural Resources 

Sedimentation Control Commission 962 - 963 

Wildlife Resources Commission 963 - 998 

Insurance 
Home Inspector Licensure Board 959 - 961 

Labor 
Occupational Safety & Health 961-962 

Licensing Boards 

Landscape Architects, Board of 1015 

Nursing, Board of 1016 - 1028 

Refrigeration Examiners 1028 - 1029 

Public Education 
Elementary and Secondary Education 998 - 1012 

Transportation 

Highways, Division of 1012-1015 

V. TEMPORARY RULES 

Environment and Natural Resources 

Health Services 1041 - 1046 

Marine Fisheries 1038 - 1041 

Health and Human Services 

Facility Services 1035 - 1036 

Social Services Commission 1036 - 1038 

Insurance 
Life and Health Division 1038 

Licensing Boards 
Geologists, Board for Licensing of 1064 - 1067 

Secretary of State 

Electronic Commerce Section 1046 - 1064 

VI. RULES REVIEW COMMISSION 1068-1073 

VIL CONTESTED CASE DECISIONS 

Index to ALJ Decisions 1074-1081 

Text of Selected Decisions 

98 OSP 0914 1082 - 1085 

99 OSP 0050 1086 - 1088 

VIII. CUMULATIVE INDEX 1-87 



Ni>nh Carolina Register \s published semi-monthly forSig."; per year by Ihe Office of Administrative Heanngs, 424 North Blount Street. Raleigh, NC 
27601 . (ISSN L'i200604) to mail at Periodicals Rates is paid at Raleigh. NC. POSTMASTER: Send Address changes to the Nonli Carolina Register. 
PO Drawer 27447. Raleigh. NC 2761 1-7447. 



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EXECUTIVE ORDERS 



► 



EXECUTIVE ORDER NO. 165 

EXTENDING EXECUTIVE ORDER NO. 159 

EMERGENCY RELIEF FOR DAMAGE CAUSED BY HURRICANE FLOYD 

By the power and authority vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS 
ORDERED: 

Executive Order Number 159, Emergency Relief for Damage Caused by Hurricane Floyd, as amended by Executive Order 
Number 162, is hereby re-instituted and the provisions therein shall remain in full force and effect through January 31, 2000. 



Done in the Capital City of Raleigh, North Carolina, this the 15"" day of November, 1999. 

s/s James B. Hunt Jr. 
Governor 

ATTEST: 

s/s Elaine F. Marshall 
Secretary of State 



14:12 NORTH CAROLINA REGISTER December 15, 1999 953 



IN ADDITION 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



BEFORE THE 
TAX REVIEW BOARD 



IN THE MATTER OF: 

The Denial of a Claim for Refund of Sales 
and Use Tax for the period of October I , 
1993, through September 30, 1996 by the 
Secretary of Revenue 



vs. 



CHEP USA 
Taxpayer 



ADMINISTRATIVE DECISION 



Number: 



356 



This matter was heard before the Regular Tax Review Board in the city of Raleigh, Wake County, North Carolina on May 
27, 1999, upon Taxpayer's petition for administrative review of the Final Decision of the Assistant Secretary of Revenue entered on 
March 4, 1998, sustaining the denial of Taxpayer's claim for refund of sales and use tax for the period of October 1, 1993 through 
September 30, 1 996. The Taxpayer was at the hearing by Attorneys, Joseph D. Joyner, Jr. and Sue A. Sprunger. Marilyn R. Mudge, 
Assistant Attorney General appeared at the hearing for the Department of Revenue. 

Chairman Harlan E. Boyles, State Treasurer presided over the hearing with Jo Anne Sanford, Chair, Utilities Commission 
and duly appointed member, Noel L. Allen, Attorney at Law participating. 

On November 13, 1996, Taxpayer submitted a claim for refund of sales and use tax paid for the period of October 1, 1993, 
through September 30, 1996. On December 3, 1996, the Division notified the Taxpayer that its demand for refund was denied. On 
December 23, 1996, Taxpayer objected to the Division's denial of the claim for refund and requested a hearing before the Secretary 
of Revenue pursuant to G.S. 1 05-266. 1 . On March 4, 1 998, the Assistant Secretary entered his decision that sustained the denial of 
Taxpayer'sclaimforrefundof sales and use taxes for the period of October 1, 1993, through September 30, 1996. Pursuant to G.S. 
105-241 .2, Taxpayer filed a notice of intent and petition for administrative review of the Assistant Secretary's final decision with 
the Tax Review Board. 

ISSUE 

The issue to be decided in this matter is as follows: 

L Is Taxpayer liable for collecting and remitting tax on its rentals of pallets to a food product manufacturer? 

EVIDENCE 



follows 
L 

2. 
3. 
4. 
5. 



The evidence presented at hearing before the Secretary of Revenue and included in the record presented to the Board is as 

Memorandum dated April 18, 1996, from the Secretary of Revenue to the Assistant Secretary of Revenue, designated as 
Exhibit E-1. 

Application for registration, designated as Exhibit E-2. 

Claim for refund of sales and use tax dated November 13,1 996, designated as Exhibit E-3. 

Letter dated November 15, 1996, from the Taxpayer's representative to the Division, designated as Exhibit E-4. 

Letter dated December 3, 1996, from the Division to Taxpayer's representative, designated Exhibit E-5. 



954 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



IN ADDITION 



6. Letter dated December 23, 1996, from the Taxpayer's representative, designated as Exhibit E-6. 

7. Letter dated January 10, 1997, from Sales and Use Tax Division to Taxpayer's representative, designated as Exhibit E-7. 

8. Letter dated February 24, 1 997, from the Taxpayer's representative to the Sales and Use Tax Division, designated as Exhibit 
E-8. 

9. Letter dated May 21, 1997, from Sales and Use Tax Division to Taxpayer's representative, designated as Exhibit E-9. 

1 0. Letter dated July 1 5, 1 997, from the Assistant Secretary of Revenue to the Taxpayer's representative, designated as Exhibit 
E-10. 

1 1 . Letter dated July 23, 1 997, from Taxpayer's representative to the Assistant Secretary, designated as Exhibit E- 1 1 . 

12. Letter dated July 28, 1997, from the Assistant Secretary to Taxpayer's representative, designated as Exhibit E-12. 

13. Letter dated September 22, 1997, from the Assistant Secretary to Taxpayer, designated as Exhibit E-13. 

14. Memorandum dated November 2, 1965, from the office of the Attorney General to the Division, designated as Exhibit E-14. 

15. Memorandum dated January 9, 1997, from the Office of the Attorney General to the Secretary, designated as Exhibit E-15. 

16. Brief for Tax Hearing submitted by the Division, designated as Exhibit E-16. 

1 7. Memorandum and attachments dated November 6, 1 997, from Taxpayer's representative, designated as Exhibit TP- 1 . 

18. Letter dated December 1 1, 1997, from Taxpayer's representative to the Assistant Secretary, designated as Exhibit TP-2. 

19. Letter dated October 21, 1997, from the Assistant Secretary to Taxpayer, designated as Exhibit S-1. 
Letter dated November 7, 1997, from the Assistant Secretary to Taxpayer, designated as Exhibit S-2. 

FINDINGS OF FACT 
The Board considered the following findings of fact in the Assistant Secretary's final decision in reaching its decision: 

1 . Taxpayer rents pallets to manufacturers, distributors and other vendees through implementation of a distribution system 
whereby the pallets 

are eventually returned to Taxpayer after transfer to multiple users in the course of rental to one vendee. 

2. Taxpayer rented pallets to a manufacturer and charged a daily rental fee for the number of pallets in possession of the 
manufacturer. 

3. Taxpayer collected and remitted the applicable State and local tax on its rental charges made to the manufacturer. 

4. The manufacturer placed its products sold to retailers on the pallets and shipped the pallets and merchandise to said 
purchasers. 

5. The manufacturer had no financial obligation to Taxpayer for rental of the pallets after the pallets bearing its products were 
shipped tocustomers. 

6. The manufacturer's customers were responsible for returning the pallets to Taxpayer. These customers incurred no charges 
for the pallets in their possession unless a pallet was lost or damaged. 

7. Taxpayer retained title to the pallets throughout the course of the transactions. 



14:12 NORTH CAROLINA REGISTER December 15, 1999 955 



IN ADDITION 



8. Taxpayer protested the Division's denial of its demand for refund and filed a timely request for hearing. 

CONCLUSIONS OF LAW 

The Board considered the following conclusions of law made by the Assistant Secretary in the final decision: 
L Taxpayer was at all material times engaged in the business of renting tangible personal property. 

2. Taxpayer made a rental of pallets to the manufacturer for use by the manufacturer. 

3. The pallets do not constitute part of the manufacturer's sales of its products to its customer. 

4. Taxpayer's rentals of pallets for the manufacturer are not exempt under the provisions of G.S. 105-164.13(23). 

5. Taxpayerfiledatimely demand for refund for the period of October 1, 1993, through September 30, 1996, pursuant to G.S. 
105-266.1. 

DECISION 

The scope of administrative review for petitions filed with the Tax Review Board is governed by G.S. 105-241. 2(b2). After 
the Board conducts a hearing this statute provides in pertinent part: "The Board shall confirm, modify, reverse, reduce or increase 
the assessment or decision of the Secretary." 

The Taxpayer argues that that Assistant Secretary erred in failing to conclude as a matter of law that the pallets were a part 
of the sale of the goods. G.S. 105-164.13(23) exempts the sale of certain materials "when such materials are used for packaging, 
shipment or delivery of tangible personal property which is sold either at wholesale or retail when such articles constitute a part of 
the sale of the tangible personal property and are delivered to the customer." The subject pallets are not specifically listed in G.S. 105- 
164.13(23) as articles subject to the exemption. However, the Department has allowed the exemption for such articles when it is 
determined that the articles are "part of the sale" of the products sold to the distributor by the manufacturer. 

Since the gross receipts derived from the lease or rental of the tangible personal property are made taxable by G.S. 105- 
164.4(2), Taxpayer's rental of the pallets are taxable unless Taxpayer demonstrates that the exemption under G.S. 105-164.13(23) 
applies. The burden of proof falls upon the Taxpayer to show that the pallets are exempt from taxation. As a general rule, an 
exemption statute is strictly construed; thus the Board must determine that the Taxpayer has carried its burden in this matter. 

The Board having conducted a hearing in this matter and having considered the petition, the briefs, the record and the final 
decision of Assistant Secretary, concludes that the Taxpayer did not carry its burden of proof in this matter. The Taxpayer failed to 
show that the pallets were a part of the sale of the goods from the manufacturer to the distributor. Furthermore, the finding of facts 
by the Assistant Secretary were not disputed, and the facts do not support Taxpayer' s claim for exemption under G.S. 105- 1 64. 13(23). 
Thus, the Assistant Secretary correctly concluded as a matter of law that G.S. 105-164.13(23) did not apply. 

IT IS THEREFORE ORDERED, by a vote of 2 to 1 , to confirm in all respects the Assistant Secretary's final decision 
sustaining the denial of Taxpayer's claim for a refund of sales and use tax for the period of October 1, 1993, through September 30, 
1996. 

Made and entered into this 1 3th day of August, 1 999. 

s/s Harlan E. Boyles, Chairman 
State Treasurer 

s/s Jo Anne Sanford, Member 
Chair, Utilities Commission 



956 NORTH CAROLINA REGISTER December 15, 1999 14:12 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule making. The agency must 
publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a rule. 
Publication of a temporary rule senses as a Notice of Rule-making Proceedings and can be found in the Register under the 
section heading of Temporary Rules. A Rule-making Agenda published by an agency sen'es as Rule-waking Proceedings and 
can be found in the Register under the section heading of Rule-making Agendas. Statutoiy reference: G.S. 150B-21.2. 



TITLE 11 - DEPARTMENT OF INSURANCE 



Authority for the rule-making: G.S. 143-143. I0{b)(4} 



CHAPTER 4 - CONSUMER SERVICES DIVISION 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

CHAPTER 18 - MULTIPLE EMPLOYER WELFARE 
ARRANGEMENTS 

-K jotice of Rule-making Proceedings is hereby given by the 
ly NC Department of Insurance in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Register the te.xt of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

11 NCAC4: 12: 18. 

Authority for the rule-making: G.S. 58-2-40: 58-3-100: 58- 
63-15: 58-63-65 

Statement of the Subject Matter: Insurance Unfair Claims 
Settlement Practices 

Reason for Proposed Action: Adopt new rules, and revise and 
modernize existing rules for unfair claim settlement practices in 
accordance with changes in statutoiy authority. 

Comment Procedures: Written comments may be sent to Louis 
Belo. Market Examinations, NC Department of Insurance. Ill 
Seaboard Avenue, Raleigh, NC 27604. 



Statement of the Subject Matter: Continuing education rules 
for set-up contractors, enforcement rules under the Uniform 
Standards for Manufactured Homes Act. and rules for 
prehearing conferences. 

Reason for Proposed Action: Establish requirements for a 
continuing education program for set-up contractors: adopt 
rules for the enforcement of the Uniform Standards for 
Manufactured Homes Act, and for the Manufactured Housing 
Board staff to conduct prehearing conferences: and update 
current rules. 

Comment Procedures: Written comments should be sent to 
Patrick Walker, NC Manufactured Housing Board, NC 
Department of Insurance, 410 N. Boylan Avenue, Raleigh. NC 
27603. Anyone having questions should contact Patrick Walker 
at (919) 733-3901. 



TITLE 12 - DEPARTMENT OF JUSTICE 

CHAPTER 10 - N.C. SHERIFFS' EDUCATION 
AND TRAINING STANDARDS COMMISSION 

* TOtice of Rule-making Proceedings is hereby given by the 
1 V NC Sheriffs 'Education and Training Standards Commission 
in accordance with G.S. 150B-21.2. The agency shall 
subsequently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 



CHAPTER 8 - ENGINEERING AND 
BUILDING CODES DIVISION 

* jotice of Rule-making Proceedings is hereby given by the 
ly NC Manufactured Housing Board/NC Department of 
Insurcmce in accordance with G.S. 150B-21 .2. The agency shall 
subsequently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: / / 

NCAC 8 .0900. Other rules may be proposed in the course of 
the rule-making process. 



Citation to Existing Rules Affected by this Rule-Making: 12 

NCA CI OB. 0302-. 0303, . 0909. Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S. 17-E 

Statement of the Subject Matter: 

.0302 - Documentation of Educational Requirement - sets out 
what documentation Division stajfcan accept for completion of 
High School 

.0303 - Fingerprint Records Check - sets out Division and 
agency handling of applicant fingerprint records check 
.0909 - Terms and Conditions of a Limited Lecturer 
Certification - sets out what Limited Lecturer must do in order 
to maintain their certification to teach in the Detention Officer 
Certification Course 



14:12 



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December 15, 1999 



957 



RULE-MAKING PROCEEDINGS 



Reason for Proposed Action: 

.0302 - Documentation of Educational Requirement - proposed 
amendment clarifies that Division staff can accept completion of 
High School through charter, home schooling, etc. 
.0303 - Fingerprint Records Check - language made more 
general in order to accommodate the live-scanning (>f applicant 
fingerprint cards, whereby hard copies of the cards will be 
phased out over time 

.0909 - Terms and Conditions of a Limited Lecturer 
Certification - sets out that Limited Lecturers certified to teach 
Physical Fitness and Subject Control Techniques in the 
Detention Officer Certification Course (DOCCj, can satisfy 
their instructional requirement by teaching in either the DOCC 
or Basic Law Enforcement Training Course. The other Limited 
Lecturers must continue to meet their instructional requirement 
by teaching the appropriate topical area in which they are 
certified only in the DOCC. 

Comment Procedures: Please contact Peggy Bilbrey, NC 
Sheriffs' Education and Training Standards Commission, PO 
Drawer 629, Raleigh. NC 27602, phone (919) 716-6460 with 
any questions or comments concerning this information. 



Statement of the Subject Matter: Mackerel, striped bass 

Reason for Proposed Action: To require National Marine 
Fisheries Serxice Federal Mackerel Permits to take mackerel 
commercially in state waters: to restrict or prohibit the use of 
gill nets to take king mackerel in the Atlantic Ocean south of 
Cape Lookout and to amend the taking of striped bass in Joint 
waters by recreational gear. 

Comment Procedures: Written comments are encouraged and 
may be submitted to MFC, Juanita Gaskill, PO Bo.x 769, 
Morehead City, NC 28557. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 33 - MIDWIFERY JOINT COMMITTEE 

A jotice of Rule-making Proceedings is hereby given by the 
ly Midwifery Joint Committee in accordance with G.S. 
I50B-2L2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3M - FINFISH 



Citation to Existing Rules Affected by this Rule-Making: 21 

NCAC 33 .0102, .0106. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 90-171.83:90-178.2:90- 
178.5: 90-178.4(b) 



SUBCHAPTER 3Q - JURISDICTION OF 
AGENCIES: CLASSIFICATION OF WATERS 

•\ jotice of Rule-making Proceedings is hereby given by the 
1 y NC Marine Fisheries Commission in accordance with G.S. 
150B-21.2. The agency shall subsequently publish in the 
Register the te.xt of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC3M .0301: 3Q .0107 - Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 113-132: 113-134: 113- 
182: I43B-289.52 



Statement of the Subject Matter: Listing of fees for initial and 
renewal applications for approval to practice and the fee for 
reinstating a lapsed approval. How a graduate nurse midwife 
may apply for approval to practice as an applicant and how the 
applicant may function with limitations. 

Reason for Proposed Action: To bring the fee structure in 
compliance with the fees adopted by the Committee. New 
General Statutes by the 1999 Legislative Session for the Nurse 
Licensure Compact of the North Carolina Board of Nursing. 

Comment Procedures: Comments regarding this action should 
be directed to Jean H. Stanley, A PA Coordinator, Midwifery- 
Joint Committee, PO Box 2129, Raleigh, NC 27612. 



958 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept commetus on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required cotnment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. 150B-2 1.2. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the NC Home Inspector Licensure Board/NC 
Department of Insurance intends to amend rules cited as 11 
NCAC 8 .1103. .1105-1107. .1116. Notice of Rule-making 
Proceedings was published in the Register on October 15. 1999. 

Proposed Effective Date: July 1. 2000 

A Public Hearing wdl be conducted at 9:00 am on January 14. 
2000 at 410 Boy Ian Avenue. Raleigh, NC 27603. 

Reason for Proposed Action: Standards of Practice rules need 
to be updated. 

Comment Procedures: Written comments should be sent to 
Grover Sawyer. NC Home Inspector Licensure Board. NC 
Department of Insurance. 410 Boylan Avenue. Raleigh. NC 
27603. Anyone having questions should contact Grover Sawyer 
at (919) 733-3901. 



State 



Fiscal Impact 
Local Sub. 



None 



CHAPTER 8 - ENGINEERING AND 
BUILDING CODES DIVISION 

SECTION .1100 - N.C. HOME INSPECTOR 

STANDARDS OF PRACTICE AND 

CODE OF ETHICS 

.1103 PURPOSE AND SCOPE 

(a) Home inspections performed according to this Section 
shall provide the client with a better understanding of the 
property conditions, as observed at the time of the home 
inspection. 

(b) Home inspectors shall: 

( 1 ) Provide a written, signed cont r act that shall: written 
contract, signed by the client, before the home 
inspection is performed that shall: 

(A) State that the home inspection is in accordance 
with the Standards of Practice of the North 
Carolina Home Inspector Licensure Board; 

(B) Describe what services shall be provided and 
their cost; and 

(C) State, when an inspection is for only one or a 
limited number of systems or components, that 



the inspection is limited to only those systems 
or components; 

(2) Observe readily visible and accessible installed 
systems and components listed in this Section; and 

(3) Submit a written report to the client that shall: 

(A) Describe those systems and components 
specified to be described in Rules .1106 
through . 1 1 1 5 of this Section; 

(B) State which systems and components 
designated for inspection in this Section have 
been inspected, and state any systems or 
components designated for inspection that 
were not inspected, and the reason for not 
inspecting; 

(C) State any systems or components so inspected 
that do not function as intended, allowing for 
normal wear and tear, or adversely affect the 
habitability of the dwelling; and 

(D) State the name, license number, and signature 
of the person supervising the inspection and 
the name, license number, and signature of the 
person conducting the inspection. 

(c) This Section does not limit home inspectors from: 

(1) Reporting observations and conditions or rendering 
opinions of items in addition to those required in 
Paragraph (b) of this Rule; or 

(2) Excluding systems and components from the 
inspection if requested by the client, and so stated in 
the written contract. 

(d) Written reports required by this Rule for pre-purchase 
home inspections of three or more systems shall include a 
summary of any system or component that: 

(1 ) does not function as intended or adversely affects the 
habitability of the dwelling; or 

(2) appears to warrant further investigation by a specialist 
or requires subsequent observation. 

This summary shall not contain recommendations for routine 
upkeep of a system or component to keep it in proper 
functioning condition or recommendations to upgrade or 
enhance the function, efficiency, or safety of the home. This 
summary shall contain the following statements: "This 
summary is not the entire report. The complete report may 
include additional information of concern to the client. It is 
recommended that the client read the complete report." 

Authority G.S. 143-151.49. 

.1105 GENERAL EXCLUSIONS 

(a) Home inspectors are not required to report on: 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



959 



PROPOSED RULES 



( 1 ) Life expectancy of any component or system; 

(2) The causes of the need for a repair; 

(3) The methods, materials, and costs of corrections; 

(4) The suitability of the property for any specialized use; 

(5) Compliance or non-compliance with codes, 
ordinances, statutes, regulatory requirements or 
restrictions; 

(6) The market value of the property or its marketability; 

(7) The advisability or inadvisability of purchase of the 
property; 

(8) Any component or system that was not observed; 

(9) The presence or absence of pests such as wood 
damaging organisms, rodents, or insects; or 

(10) Cosmetic items, underground items, or items not 
permanently installed. 

(b) Home inspectors are not required to: 

( 1 ) Offer warranties or guarantees of any kind; 

(2) Calculate the strength, adequacy, or efficiency of any 
system or component; 

(3) Enter any area or perform any procedure that may 
damage the property or its components or be 
dangerous to the home inspector or other persons; 

(4) Operate any system or component that is shut down 
or otherwise inoperable; 

(5) Operate any system or component that does not 
respond to normal operating controls; 

(6) Distu r b insulatio n , move Move personal items, 
panels, furniture, equipment, plant life, soil, snow, 
ice, or debris that obstructs access or visibility; 

(7) Determine the presence or absence of any suspected 
adverse environmental condition or hazardous 
substance, including but not limited to toxins, 
carcinogens, noise, contaminants in the building or in 
soil, water, and air; 

( 8 ) Determine the effectiveness of any system installed to 
control or remove suspected hazardous substances; 

(9) Predict future condition, including but not limited to 
failure of components; 

(10) Project operating costs of components; 

(11) Evaluate acoustical characteristics of any system or 
component; or 

( 1 2) Observe special equipment or accessories that are not 
listed as components to be observed in this Section. 

(c) Home inspectors shall not: 

(1) Offer or perform any act or service contrary to law; or 

(2) Offer or perform engineering, architectural, plumbing, 
electrical or any other job function requiring an 
occupational license in the jurisdiction where the 
inspection is taking place, unless the home inspector 
holds a valid occupational license, in which case the 
home inspector shall inform the client that the home 
inspector is so licensed, and therefore qualified to go 
beyond this Section and perform additional 
inspections beyond those within the scope of the basic 
inspection. 

AuthoritxG.S. 143-151.49. 



.1106 STRUCTURAL COMPONENTS 

(a) The home inspector shall observe structural components 
including: 

( 1 ) Foundation; 

(2) Floors; 

(3) Walls; 

(4) Columns or piers; 

(5) Ceilings; and 

(6) Roofs. 

(b) The home inspector shall describe the type of: 

( 1 ) Foundation; 

(2) Floor structure; 

(3) Wall structure; 

(4) Columns or piers; 

(5) Ceiling structure; and 

(6) Roof structure. 

(c) The home inspector shall: 

( 1 ) Probe structural components where deterioration is 
suspected, except where p r obing would damag e any 
surface; sus pected; 

(2) Enter undertloor crawl spaces, basements, and attic 
spaces except when access is obstructed, when entry 
could damage the property, or when dangerous or 
adverse situations are suspected; 

(3) Report the methods used to observe underfloor crawl 
spaces and attics; and 

(4) Report signs of abnormal or harmful water 
penetration into the building or signs of abnormal or 
harmful condensation on building components. 
components; and 

(5) Move and restore floor insulation to observe the floor 
system at all exterior doors and where any plumbing 
pipes pass through the fioor. 

Authorin G.S. 143-151.49. 

.1107 EXTERIOR 

(a) The home inspector shall observe; 

(1) Wall cladding, flashings, and trim; 

(2) Entryway doors and a representative number or 
windows; 

(3) Garage door operators; 

(4) Decks, balconies, stoops, steps, areaways, porches 
and applicable railings; 

(5) Eaves, soffits, and fascias; and 

(6) Vegetation, grading, drainage, driveways, patios, 
walkways, and retaining walls with respect to their 
effect on the condition of the building. 

(b) The home inspector shall: 

( 1 ) Describe wall cladding materials; 

(2) Operate all entryway doors and a representative 
number of windows; 

(3) Operate garage doors manually or by using 
permanently installed controls for any garage door 
operator; and 

(4) Report whether or not any garage door operator will 
automatically reverse or stop when meeting 



960 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



reasonable resistance during closing, closing; and 
(5) Probe exterior wood components where deterioration 

is suspected. 
(c) The home inspector is not required to observe; 
(1) Storm windows, storm doors, screening, shutters, 

awnings, and similar seasonal accessories; 

Fences; 

Presence of safety glazing in doors and windows; 

Garage door operator remote control transmitters; 

Geological conditions; 

Soil conditions; 

Recreational facilities (including spas, saunas, steam 

baths, swimming pools, tennis courts, playground 

equipment, and other exercise, entertainment, or 

athletic facilities); 

Detached buildings or structures; or 

Presence or condition of buried fuel storage tanks. 



(2) 
(3) 
(4) 
(5) 
(6) 
(7) 



(8) 
(9) 



Authority G.S. 143-151.49. 

.1116 CODE OF ETHICS 

(a) Licensees shall discharge their duties with fidelity to the 
public, their clients, and with fairness and impartiality to all. 

(b) Opinions expressed by licensees shall only be based on 
their education, experience, and honest convictions. 

(c) A licensee shall not disclose any information about the 
results of an inspection without the approval of the client for 
whom the inspection was performed, or the clients designated 
representative. 

(d) No licensee shall accept compensation or any other 
consideration from mote than one interested party for the same 
service without the consent of all interested parties. 

(e) No licensee shall accept or offer commissions or 
allowances, directly or indirectly, from other parties dealing with 
the client in connection with work for which the licensee is 
responsible. 

(f) No licensee shall express, within the context of an 
inspection, an appraisal or opinion of the market value of the 
inspected property. 

(g) Before the execution of a contract to perform a home 
inspection, a licensee shall disclose to the client any interest in 
a business that may affect the client. No licensee shall allow his 
or her interest in any business to affect the qualify quality or 
results of the inspection work that the licensee may be called 
upon to perform. No licensee shall, for compensation or other 
consideration, perform any work on or improvement to any 
system or component that, according to a home inspection report 
made by that licensee, does not function as intended. This 
prohibition applies only during the 1 2-month period after the 
date that the home inspection report is submitted to the client. 

(h) Licensees shall not engage in false or misleading 
advertising or otherwise misrepresent any matters to the public. 

Authority G.S. 143-151.49. 



TITLE 13 - DEPARTMENT OF LABOR 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Department of iMbor, 
Occupational Safety & Health intends to repeal ride cited as 13 
NCAC 07 A .0401. Notice of Rule -making Proceedings was 
published in the Register on July 15, 1999. 

Proposed Effective Date: August 1. 2000 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): Written requests 
for a public hearing on this proposed action must be directed to 
Ann B. Wall, N.C. Department of Labor, 4 W. Edenton St., 
Raleigh, NC 27601 on or before the close of business December 
30. 1999. 

Reason for Proposed Action: The North Carolina Department 
of Labor, Occupational Safety & Health is repealing the rules 
for the Carolina Star program in order to make it more flexible 
by expanding coverage through operational procedures. 

Comment Procedures: Written comments will be accepted until 
Januaiy 14. 2000. Please direct all correspondence to Ann B. 
Wall, N.C. Department of Labor, 4 W. Edenton Street, Raleigh, 
NC 27601. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 7 OSHA 

SUBCHAPTER 7A - GENERAL RULES 
AND OPERATIONAL PROCEDURES 

SECTION .0400 - PROGRAMS 

.0401 CAROLINA STAR PROGRAM 

(a) Establishment. The r e i s e stablished, w i thin the Divisio n 
of Occupational Safety and Health, North Carolina De p a r tment 
of Labor, the Carolina Sta r Program for r ecog n ition and 
promotion — of outstanding — employe r -provided, — e mployee- 
pa r ticipant, site-specific occupational safety and health systems. 

(b) Pa r ticipation. The pr og r am i s esta b lished on the basis of 
volu n tary participation by em p loye r s. Qualified employe r s will 
be put on a list of "recognized employers" who shall be exempt 
from programmed ins p ections c o n t in gent upon mai n tai ni ng the 
r equirements forpart i cipation a n d co n tinued, favorable trien n ial 
evaluations. — Minimal requirements for pa r t i cipation in this 
prog r am a r e: 

(+) Em p loye r m a n agement shall have comprehensive 

w r itten pr og r ams which address the safety and health 
o f all em p loyees and which a r e integrated into the 
ov er all management system of the organizatio n; 

t2^ E mp loy e es must actively pa rt ic ip ate in safety and 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



961 



PROPOSED RULES 



health p r og r ams and pr oblem identification and 
resolution; 

t?r) Non-const ru ctio n a pp lica n ts shall have : 

tA^ ave r age i n ju r y incidence r a t es and average lost 

wo r kday i n ju r y case r a t e s for the most recent 
t hr ee calendar yea r s fo r the site a p plied fo r at 
the time of app r oval at o r below 50% of the 
most recent specific industry state average 
published by the North Carolina De p artme n t of 
Labo r . Worksites with less tha n th r ee yea r s' 
experience shall be conside r ed based on total 
expe r ie n ce, p r ovided that such expe r ience shall 
n ot b e le s s than 12 months; and 

(©1 combined overall ave r age injury incidence and 

lost workday case rates fo r the most recent 
three — c ale n da r — yea r s — for — aH — contractors" 
em p loyees assigned to a site who worked a 
total of 500 or more hou r s in at least o n e 
calendar quarter at the wo r ksite at o r below 
50% of the most r ecent specific industry state 
ave r age p u b lished by the North Carolina 
Department of Labor. Worksites with less tha n 
three years' ex p e r ie n ce shall be considered 
b ased on total expe r ience, p r ovided that such 
expe r ience shall not be less than 12 months ; 

(41 Construction applica n ts shall have average inju r y 

incidence and lost wo r kday case r ates for the most 
r ece n t th r ee calendar years at the site applied fo r at the 
time of approval at or below 50% of the most r e c ent 
specific indust r y state ave r age published by the North 
C a r olina Department of Labor. — Tlie rates shall 



include hours worked and 



illnesses 



i n ju r ies or 
sustained by subcont r actors at the site. — Worksites 



with less tha n three 



shall be 



years — experience 
co n sid er ed based on total expe r ience, pr ovided that 
such experience s h all not be less than 12 months; 

(5) Employer ma n agement shall have a system for the 

an n ual evaluation of the operation of the safety a n d 
health prog r am to j udge the success of the p r og r am in 
meeting stated goals and objectives; 

(fr) Application must be made to the Division of 

Occupational Safety and Health; and 

fp) Ve r ification. — evaluatio n — and — app r oval — of each 

prospective employe r -applicant must be made by the 
Division of Occupational Safety and Health. 
tci — Public Access. — Tlie following docume n ts shall b e 
mai n tai n ed fo r public access in the Division of Occupational 
Safety and Health beginn in g on the day the program applicant 
is a ppr oved and continuing fo r as long as the ap p lica n t remains 
active within the p rog r am: 

(4i — Carolina Star Prog r am applicatio n and amendments ; 

(2^ pr e-app r oval — report — and — subsequent — ev a luatio n 

reports; 

(fH t r ansmittal memoranda to the Commissione r of 

Labor; and 
(4) — the Commissione r of Labor's approval letter . 
(d) Evaluation. Tlie Cai - olina Star Program part i c ip ants s h al l 



be re-evaluated eve r y th r ee calendar yea r s to dete r m i ne 
continued qualification for the program; to document results of 
prog r am participants; and. to identify any problems that have the 
potential to adversely affect continued Cai ^ olina Star Program 
qualification, 
(e) Termination and Rea p plication. 

f+) Te r minatio n of a Carolina Star designation by an 

em p loyer shall occur; 

tA) at construction sites upon completion of 

construction work at the site; or 

fB^ when — sa i d employe r. — for any r eason. — so 

r esolves. 

(2) Te r mination of a Carolina Star designation by the 

Division of Occupational Safety and Health shall 



occu r at any time du r ing the th r ee 



i y time aurmg tne tn r ee year period it a 
significa n t failu r e to maintain the safety and health 
pr og r am in ac cor dance with p r ogram requirements 
has been identified and the r e has been a failure to 
co rr ect the situation. 

t¥) Reapplication following termination shall n ot be 

conside r ed fo r a pe r iod of three years f r om the date of 
te r mination by the Division of Occu p ational Safety 
and Health. 

f4) Reinstatement r equi r es r eapplication. 

Authorin G.S. 95-133. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 1508-21. 2 
that the Sedimentation Control Commission intends to 
amend the ride cited as 15A NCAC 4B .0126. Notice of Rule- 
making Proceedings was published in the Register on October 
1, 1999. 

Proposed Effective Date: July 1. 2000 

A Public Hearing will be conducted at 7:00 p.m. on December 
30, 1999 at the Archdale Building. Ground Floor Hearing 
Room, 512 N. Salisbury Street, Raleigh, NC. 

Reason for Proposed Action: The General Assembly during 
the 1999 session removed the one-third cap on the collection of 
review fees. This allowed the Sedimentation Control 
Commission to increase the review fee. The Commission 
determined that an increase in the fee was needed to provide 
additional resources for the Sediment Program. These 
additional resource needs were identified in the Commission 's 
Plan of Action adopted on November 19, 1997. 

Comment Procedures: Written comments may be submitted to: 
Mell Nevils, Section Chief, Division of Land Resources - Land 
Quality Section, 1612 Mail Senice Center, Raleigh, NC 27699- 
1612, 919-733-4574, ext. 701. Comments will be accepted 



962 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



through January 14, 2000. 



Fiscal Impact 
State Local 
/ / 



Sub. None 



CHAPTER 4 SEDIMENTATION CONTROL 

SUBCHAPTER 4B - EROSION AND SEDIMENT 
CONTROL 

SECTION .0100 - GENERAL 

.0126 PLAN APPROVAL FEE 

(a) A nonrefundable plan review processing fee, in the 
amount stated in Paragraph (b) of this rule, shall be paid when 
an erosion and sedimentation control plan is tiled in accordance 
with 15ANCAC4B.0il8. 

( 1 ) Each plan shall be deemed incomplete until the plan 
review processing fee is paid. 

(2) The plan review processing fee shall be based on the 
first ac r e and each additional ac r e number of acres, or 
any part ther e of of an acre, of disturbed land shown 
on the plan. 

(3) No plan review processing fee will be charged for 
review of a revised plan unless the revised plan 
contains an increase in the number of acres to be 
disturbed. If the revised plan contains an increase in 
the number of acres to be disturbed, the plan review 
processing fee to be charged shall be the amount 
stated in Paragraph (b) of this Rule for each additional 
acre (o r any p a r t the r eof) or part of any additional 
acre disturbed. 



(b) Schedule of Fees : 

Fi r st Ac r e 
Distu r bed — 



TJOtTAKJ 

The nonrefundable 



Each Additional Acr e 
(or any part thereof) 
Disturbed 
$20.00 
3lan review processing fee shall be 



forty dollars ($40.00) for each acre or part of any acre of 
disturbed land. 

(c) Payment of the plan review processing fee shall be by 
check or money order made payable to the "N.C. Department of 
Environment. Health. Environment and Natural Resources". 
The payment shall refer to the erosion and sedimentation control 
plan. 

td) I n o r de r to com p ly with the limit on fees set forth in G.S. 
1 13A-54.2(a). the Di r ecto r shall, in the first half of each state 
fiscal yea r , p r o j ect r evenues for the fiscal yea r f r om fees 
collected pursuant t o this Rule. If this projection shows that the 
statuto r y limit will be exceeded, the Director shall o r de r a pr o 
r ata r eduction in the fee schedule fo r the remainde r of the fiscal 
year to avoid r evenue collectio n in excess of the statuto r y limits . 

Authority G.S. 113A-54: 113A-54.2. 



Notice is hereby given in accordance with G.S. 150B-2I.2 
that the North Carolina Wildlife Commission intends to 
amend the ride cited as 15A NCAC lOB .0403. Notice of Rule- 
making Proceedings was published in the Register on June 1, 
1999. 

Proposed Effective Date: Jidy 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on Jainiary 
5. 2000 at the Archdale Building. Room 332. 512 N. Salisbuty 
Street, Raleigh, NC 27603. 

Reason for Proposed Action: To amend the application for fo.x 
tags to conform with changes in the fo.x rule (lOB .0212). 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, the 
record of hearing will be open for receipt of written comments 
from December 15, 1999 to Januaiy 15, 2000. Such written 
comments must be delivered or mailed to the NC Wildlife 
Resources Commission, 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 10 - WILDLIFE 
RESOURCES AND WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0400 - TAGGING FURS 

.0403 APPLICATION FOR TAGS 

(a) Fur tags shall be distributed in response to applications 
made on forms supplied by the Commission. Such application 
must show the name and address of the applicant and such other 
information as may be required in the discretion of the Executive 
Director. 

(b) The Executive Director may. in his discretion, provide for 
the issuance of fur tags directly from the Commission 
headquarters or through authorized agents, or both. 

(c) When fur tags are issued by agents such agents shall be 
entitled to retain 10 percent of the fee charged not to exceed a 
maximum of twenty cents ($0.20) for each tag issued as 
compensation for their services. The fees to be charged for each 
fur tag are as follows; 

Species Fee 

Bobcat 2.20 

Otter 2.20 

Fur tag agencies shall be instruments of public service, the 
function of which is to provide ready access to the required tags 



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963 



PROPOSED RULES 



by any hunter, trapper or fur dealer having need of them. No fur 
tag agent having appropriate fur tags on hand shall refuse to sell 
them to any applicant during such agent s regular business hours. 
No such agent shall impose any additional condition or 
requirement for his services as such or charge, either directly or 
indirectly, any price for a fur tag in excess of that specified in 
this Paragraph. 



(d) When an 



open season witn harvest limitation to r taking 
foxes with traps or weapons is established in acco r dance wit h 
G.S. 1 13-291.4, a pp licatio n fo r pe r mits to p artici p ate must be 



made to the Commissi 



STtm — on — forms — available — from — the 
Comm i ssion. If the num b e r of applicants for an area of open fox 
season exceeds the maximum number autho r ized for the a r ea , 
the successful applicants will be picked by random com p u t e r 
selection. If there a r e two o r mo r e a r eas of o p en fox season, a 
trappe r o r hunte r will be autho r ized to purchase fox tags for use 
in only those areas which may be selected by him o n his 
a p plication in order of alte r nate prefe r ences, and such fox tags 
shall not be valid fo r use on foxes taken in any other area. A 
fixed numbe r o r quota of fox tags will be reserved for pu r chase 
by each successful applicant, at the statutory fee p r ovided in 
G.S. 11 3-29 1.4(g). until a specified date afte r which any quotas 
not pu r chased will be made available as additional quotas to 



other 



;r pe r mit holde r s fo r the same area on the b asis of one 
additional quota each, first come first served. The carcasses or 
pelts of foxes lawfully taken and lawfully tagged in an area of 
open fox season, and those taken under a depredation permit, 
and those taken under a local law that permits foxes to be sold 
may be sold; provided that this Paragraph shall not authorize the 
sale of carcasses or pelts of foxes taken under a depredation 
permit in any county in which the sale of foxes or parts thereof 
is prohibited by local law. Foxes must also be tagged in 
accordance with G.S. 11 3-29 1 .4(g). 

Authority G.S. 113-134: 113-273; 113-276.1; 113-291.4. 

Notice is hereby given in accordance with G.S. I50B-21.2 
that the North Carolina Wildlife Resources Commission 
intends to amend the rules cited as 15ANCAC lOB .01 16, .0119, 
.0203, .0209; IOC .0205-.0206, .0305, .0401-.0402, .0407, 
.0503; WD .0102-.0I04. Notice of Rule-making Proceedings 
was published in the Register on October 15, 1999. 

Proposed Effective Date: July 1, 2000 



A Public Hearing will be conducted at 7:00 p.m. on 
following dates and designated locations: 



the 



January 19, 2000 

City of Morganton 

Municipal Auditorium 

Morganton, NC 

District 7 

January 20, 2000 

Starmoimt High School 

Boonville, NC 

District 4 
January 24, 2000 

Courthouse 
Elizabethtown, NC 

District 5 

January 25, 2000 

Courthouse 

Graham, NC 

District 6 

January 26, 2000 

Central Davidson Middle School 

Lexington, NC 

District 1 

Januan,' 31, 2000 

Swain Auditorium 

Edenton, NC 

District 2 

Februaiy 1, 2000 

Courthouse 

New Bern, NC 

District 3 

February 2, 2000 

Courthouse 

Nashville, NC 

Reason for Proposed Action: 

ISA NCAC lOB .0116, .0119, .0203, .0209 - To set/amend 

hunting and trapping regulations necessary to manage and 

present the resource. 

ISA NCAC IOC. 020S-.0206, .030S, .0401:0402, .0407, .0S03 - 

To set/amend inland fishing regulations necessary to manage 

and preserre the resource. 

ISA NCAC lOD .0102:0104 - To set/amend game land 

regulations necessary to manage and preserve the resource. 



District 9 

Jarmary 18, 2000 

Southwestern Community College 

Sylva, NC 

District 8 



Note: All te.xt in bold was approved by the Rules Review 
Commission and is waiting the May 2000 session of the General 
Assembly. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, the 



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14:12 



PROPOSED RULES 



record of hearing will be open for receipt of written comments 
from December 15. 1999 to February 9, 2000. Such written 
comments must be delivered or mailed to the NC Wildlife 
Resources Commission. 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOB - HUNTING AND TRAPPING 

SECTION .0100 - GENERAL REGULATIONS 

.0116 PERMITTED ARCHERY EQUIPMENT 

(a) Only longbows, recurved hows, and compound bows 
having a minimum pull of 45 pounds may be used for taking 
game. It is unlawful to use a crossbow or any other type of bow 
equipped with any device by which the bow can be set at full or 
partial pull and released by a trigger or any similar mechanism 
without a disabled sportsman's crossbow hunting permit issued 
by the Executive Director. 

(b) Only arrows with a fixed minimum broadhead width of 
seven-eighths of an inch a n d that do not open mechan i cally u p on 
impact or a mechanically opening broadhead with a width of at 
least seven-eighths of an inch in the open position may he used 
for taking bear, deer, wild boar or wild turkey. Blunt-type arrow 
heads may be used in taking small animals and birds including, 
but not limited to, rabbits, squirrels, quail, grouse and pheasants. 
Poisonous, drugged, barbed, or explosive arrowheads may not 
be used for taking any game. 

(c) Crossbows used under a disabled sportsman's crossbow 
permit shall have a minimum pull rated at least 150 pounds. 
Heads on bolts used with crossbows shall conform to those 
described for arrows in Paragraph (b) of this Rule. 

Authorities. 113-134: 1 13-291. 1(a). 

.0119 WILDLIFE COLLECTORS 

(a) Collection Licenses. The Executive Director is authorized 
to license qualified individuals to take or collect any species of 
wildlife resources except that endangered, threatened, special 
concern s p ec i es, species and spotted turtles (Clemmys guttata) 
(Clemmys guttata). Eastern d i amondhack rattles n akes. Ca r olina 
pygmy rattlesnakes, and Eastern coral snakes may not be taken 
or collected except under a special permit issued by the 
Executive Director for research purposes. This Rule shall not 
prohibit an individual from killing an endangered, threatened, or 
special concern species species, or an Eastern diamo n dback 
r attlesnake, Carolina pygmy rattlesnake, o r Eastern coral snake 
in defense of his own life or the lives of others without a permit. 
Individuals who hold less than five reptiles or less than 25 
amphibians not on the endangered, threatened or special concern 



lists and not including spotted turtles (Clemmys guttata) 
(Clemmys quttata), Eastern d i amondback r attlesnakes, Carolina 
p ygmy r attlesnakes, and Easte rn co r al snakes are exempted from 
this license requirement. Such license shall be issued upon 
payment of a fee in accordance with the General Statutes, except 
that licenses may be issued to representatives of educational or 
scientific institutions or of governmental agencies without 
charge. Such license shall be used in lieu of any other hunting 
or trapping license required by law and shall authorize 
possession and transportation of the wildlife incidental to the 
authorized taking, except that it shall not authorize the taking, 
possession or transportation of any species of wildlife in 
violation of federal laws or regulations. 

(b) Qualifications of Licensees. In addition to representatives 
of educational and scientific institutions and governmental 
agencies the collection license may be issued to any individual 
for any purpose when such is not deemed inimical to the 
efficient conservation of the species to be collected or to some 
other wildlife species that may be dependent thereon. 

(c) Methods of Taking. The manner of taking wildlife 
resources under a collection license may be specified by the 
Executive Director pursuant to G.S. 1 13-272. 4(d) and need not 
be restricted to the usual methods of hunting or trapping. 

(d) Term of License. The Executive Director may, pursuant 
to G.S. 1 13-272. 4(c), impose time limits and other restrictions 
on the duration of any collection license, but unless so restricted 
the license shall be valid from January 1 through December 31 
of the applicable year. 

(e) Report of Collecting Activity. Each individual licensed 
under this Rule shall submit a written report to the Executive 
Director within 15 days following the date of expiration of the 
license. The report shall be on a form supplied by the Wildlife 
Resources Commission and shall show the numbers of each 
species taken under the license and the use or disposition 
thereof. The Executive Director may require additional 
information for statistical purposes such as the dates and places 
of the taking and the sex, size, weight, condition, and 
approximate age of each specimen taken. Such additional 
information may be required on the form of report or by a 
separate writing accompanying the form. 

(0 Other Requirements and Restrictions. The Executive 
Director may, pursuant to G.S. 11 3-272.4(d), impose such other 
requirements and restrictions on persons licensed under this 
Rule as he may deem to be necessary to the efficient 
administration of the wildlife conservation laws and regulations. 

Authority G.S. 113-134: 113-272.4. 

SECTION .0200 - HUNTING 

.0203 DEER (WHITE-TAILED) 

(a) Closed Season. All counties and parts of counties not 
listed under the open seasons in Paragraph (b) in this Rule shall 
be closed to deer hunting. 

(b) Open Seasons (All Lawful Weapons): 

(1) Deer With Visible Antlers. Deer with antlers or 



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965 



PROPOSED RULES 



spikes protruding through the skin, as distinguished 
from knobs or buttons covered by skin or velvet, may 
be taken during the following seasons: 

(A) Monday on or nearest October 15 through 
January 1 in all of Beaufort, Bertie, Bladen, 
Brunswick, Camden, Carteret, Chowan, 
Columbus*, Craven, Currituck, Dare, Duplin, 
Edgecombe, Franklin, Gates, Greene, Halifax, 
Hertford, Hoke, Hyde, Johnston, Jones, Lenoir, 
Martin, Nash, New Hanover, Northampton, 
Onslow, Pamlico, Pasquotank, Pender, 
Perquimans, Pitt, Richmond**, Robeson, 
Sampson, Scotland**, Tyrrell, Vance, Wake, 
Warren, Washington, Wayne, and Wilson 
counties, and the following parts of counties: 
Cumberland: All of the county except that part 
east of US 40 1 , north of NC 24, and west of I- 
95; 

Harnett: That part west of NC 87; 
Moore**: All of the county except that part 
north of NC 2 1 1 and west of US 1 ; 
* Unlawful to hunt or kill deer in Lake 
Waccamaw or within 50 yards of its shoreline; 
**See 15A NCAC lOD .0103(f)t53)(B) 
.0103(f)(52)(B) for seasons on Sandhills Game 
Land; 

(B) Monday of Thanksgiving week through the 
second third Saturday after Thanksgiving Day 
and December 26 through January 1 (If 
December 26 falls on a Sunday, then the 
season will open on December 27) in all of 
Alexander, Alleghany, Ashe, Catawba, 
Cleveland, Davie, Forsyth, Gaston, Iredell, 
Lincoln. Rutherford, Stokes, Surry, Watauga, 
Wilkes, and Yadkin counties; 

(C) Monday of Thanksgiving week through the 
third Saturday after Thanksgiving Day in all of 
Avery, Buncombe, Burke, Caldwell, Cherokee, 
Clay, Cleveland, Graham, Haywood, 
Henderson, Jackson, Macon, Madison, 
McDowell, Mitchell, Polk, Rutherfo r d, 
Swain, Transylvania, and Yancey counties; 

(D) Monday before Thanksgiving week through 
January 1 in all of Alamance, Anson, Cabarrus, 
Caswell, Chatham, Davidson, Durham, 
Granville, Guilford, Lee, Mecklenburg, 
Montgomery, Orange, Person, Randolph, 
Rockingham, Rowan, Stanly, and Union 
counties, and in the following parts of counties: 
Cumberland: That part east of US 401, north 
of NC 24 and west of 1-95; 

Harnett: That part east of NC 87; 

Moore: That part north of NC 2 1 1 and west of 

US 1; 

(E) Monday on or nearest September 10 through 
January 1 in those parts of Camden, Gates and 



Pasquotank counties known as the Dismal 

Swamp National Wildlife Refuge, in those 

parts of Hyde, Tyrrell and Washington 

counties known as the Pocosin Lakes National 

Wildlife Refuge, in those parts of Anson and 

Richmond counties known as the Pee Dee 

National Wildlife Refuge, and in that part of 

Currituck County known as the Mackay Island 

National Wildlife Refuge. Refuge: 

fF) Monday of Thanksgiving week through the 

fifth Saturday afte r Thanksgiving Day in all 

of — Clev e land, — Gasto n , — Lincoln, — and 

Rutherford counties. 

(2) Deer of Either Sex. Except on Game Lands, deer of 

either sex may be taken during the open seasons and 

in the counties and portions of counties listed in this 

Subparagraph (See lOD .0003 (See lOD .0103 for 

either sex seasons on Game Lands): 

(A) The open either-sex deer hunting dates 
established by the U.S. Fish and Wildlife 
Service during the period from the Monday on 
or nearest September 10 through January 1 in 
those parts of Camden, Gates and Pasquotank 
counties known as the Dismal Swamp National 
Wildlife Refuge, in those parts of Hyde, 
Tyrrell and Washington counties known as the 
Pocosin Lakes National Wildife Wildlife 
Refuge, in those parts of Anson and Richmond 
counties known as the Pee Dee National 
Wildlife Refuge, and in that part of Currituck 
County known as the Mackay Island National 
Wildlife Refuge. 

(B) The open either-sex deer hunting dates 
established by the appropriate military 
commands during the period from Monday on 
or nearest October 1 5 through January I in that 
part of Brunswick County known as the Sunny 
Point Military Ocean Terminal, in that part of 
Craven County known and marked as Cherry 
Point Marine Base, in that part of Onslow 
County known and marked as the Camp 
Lejeune Marine Base, on Fort Bragg Military 
Reservation, and on Camp Mackall Military 
Reservation. 

(C) First Saturday in October for youth either sex 
deer hunting by permit only on a portion of 
Belews Creek Steam Station in Stokes County 
designated by agents of the Commission. 

(D) The last open day of the Deer with Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Avery, Buncombe. 
Haywood, Henderson, Madison, Mitchell, 
Polk, Transylvania, and Yancey counties and 
the following parts of counties: 

Avery : — That part south of the Blue Ridge 
Parkway. 



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PROPOSED RULES 



I 



» 



I 



Robeson: That part west of 1-95. 
Scotland: That part south of US 74. 

(E) The last six open days of the Deer With Visible 
Antlers season described in Subparagraph 
(b)( 1 ) of this Rule in all of Burke, Caldwell, 
Catawba, Gaston, Lincoln, McDowell, and 
Watauga and the following parts of counties: 
Camden: That part south of US 158. 

Dare: Except the Outer Banks north of 
Whalebone. 

(F) The first six open days and the last six open 
days of the Deer with Visible Antlers season 
described in Subparagraph (b)( 1 ) of this Rule 
in all of Carteret, Cleveland, Harnett, Hoke, 
Pamlico, Richmond, Rutherford, counties and 
in the following parts of counties: 
Columbus: That part west of US 74, SR 1005, 
andSR 1125. 

Cumberland: That part west of 1-95. 
Moore: All of the county except that part north 
ofNC211 and west of US 1. 
Robeson: That part east of 1-95. 
Scotland: That part north of US 74. 

(G) The tlrst six open days, open days the week of 
Thanksgiving, and the last six open days of the 
Deer with Visible Antlers season described in 
Subparagraph (b)(1) of this Rule in all of 
G r ee n e, Pasquotank, Tyrrell, Wayne and 
Wilson counties and in the following parts of 
counties: 

Camden: That part north of US 1 58. 
Chowan: That part north of US 1 7 and west of 
NC 32. 

Currituck: All of the county except the Outer 
Banks. 

Nash: That part south of US 64. NC 97, 
Johnston: That part north of US 70 or west of 
1-95. 

In addition, one anterless deer may be taken 
anytime during the Deer With Visible 
Antlers season in the counties listed in this 
part. 
(H) All the open days of the Deer With Visible 
Antlers season described in Subparagraph 
(b)(1) of this Rule in all of Alamance, 
Alexander, Alleghany, Anson, Ashe, Beaufort, 
Bertie, Bladen, Brunswick, Cabarrus, Caswell, 
Chatham, Craven, Davidson, Davie, Duplin, 
Durham, Edgecombe, Forsyth, Franklin, Gates, 
Granville, Greene, Guilford, Halifax. Hertford, 
Hyde, Iredell. Jones, Lee, Lenoir, Martin, 
Mecklenburg, Montgomery, New Hanover, 
Northampton, Onslow, Orange, Pamlico, 
Pender, Perquimans, Person, Pitt, Randolph, 
Rockingham, Rowan, Sampson, Stanly, 
Stokes, Surry, Union, Vance, Wake, Warten, 



Washington, Wilkes and Yadkin counties, and 
in the following parts of counties: 
Buncombe: that That part east of NC 191, 
south of the French Broad and Swannanoa 
Rivers, west of US 25, and north of SR 3503, 

Chowan: That part south of US 1 7 or east of 

NC 32. 

Columbus: That part east of a line formed by 

US74, SR 1005, and SR 1125. 

Cumberland: that That part east of 1-95. 

Dare: That part of the Outer Banks north of 

Whalebone. 

Henderson: That part east of NC 191 and 

north and west of NC 280. 

Johnston: That part south of US 70 and east of 

1-95. 

Moore: that That part north of NC 2 1 1 and 

west of US 1 . 

Nash: That part north of US64t NC 97. 
(c) Open Seasons (Bow and Arrow): 
(1) Authorization. Subject to the restrictions set out in 
Subparagraph (2) of this Paragraph and the bag limits 
set out in Paragraph (e)of this Rule, deer of either sex 
may be taken with bow and arrow during the 
following seasons: 

(A) Monday on or nearest September 10 to the 
fourth Saturday thereafter in the counties and 
parts of counties having the open season for 
Deer With Visible Antlers specified by Part 
(A) of Subparagraph (b)( 1 ) of this Rule, except 
on the Sandhills Game Land and the area 
known as the Outer Banks in Currituck 
County. 

(B) Monday on or nearest September 10 to the 
second Saturday before Thanksgiving and the 
second Monday after Thanksgiving until 
December 19 (If December 19 falls on a 
Sunday, the season will close on December 1 8 ) 
in the counties and parts of counties having the 
open seasons for Deer With Visible Antlers 
specified by Part (B) of Subparagraph (b)( 1 ) of 
this Rule. Rule and in Gaston and Lincoln 
counties. 

(C) Monday on or nearest September 10 to the 
fourth Saturday thereafter, and Monday on or 
nearest October 15 to the Saturday before 
Thanksgiving in the counties and parts of 
counties having the open seasons for Deer 
With Visible Antlers specified by Part (C) of 
Subparagraph (b)( 1 ) of this Rule. Rule and i n 
Cleve l and and Rutherfo r d counties. 

(D) Monday on or nearest September 10 to the 
third Saturday before Thanksgiving in the 
counties and parts of counties having the open 
season for Deer With Visible Antlers specified 



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December 15, 1999 



967 



PROPOSED RULES 



by Part (D) of Subparagraph (b)(1) of this 
Rule, and on Sandhills Game Land. 
(2) Restrictions: 

(A) Dogs may not be used for hunting deer during 
the bow and arrow season. 

(B) It is unlawful to carry any type of firearm 
while hunting with a bow during the bow and 
arrow deer hunting season. 

(C) Only bows and arrows of the types authorized 
in 15A NCAC 1 OB .01 16 for taking deer may 
be used during the bow and arrow deer hunting 
season. 

(d) Open Seasons (Muzzle-Loading Rifles and Shotguns): 

( 1 ) Authorization. Subject to the restrictions set out in 
Subparagraph (2) of this Paragraph, deer may be 
taken only with muzzle-loading firearms (except that 
bow and arrow may be used on designated and posted 
game land Archery Zones) during the following 
seasons: 

(A) Monday on or nearest October 8 to the 
following Saturday in Cleveland — and 
Rutherford counties and in the counties and 
parts of counties having the open seasons for 
Deer With Visible Antlers specified by Parts 
(A) and (C) of Subparagraph (b)(1) of this 
Rule, except on Sandhills Game Land and the 
area known as the Outer Banks in Currituck 
County. 

(B) Monday to Saturday of the week preceding 
Thanksgiving week and from December 20 
through December 25 (If December 20 falls on 
a Sunday the season will open on December 
21, if December 25 falls on a Sunday, the 
season will close on December 24) in the 
counties and parts of counties having the open 
seasons for Deer With Visible Antlers 
specified by Part (B) of Subparagraph (b)( 1 ) of 
this Rule. Rule and in Gaston and Lincoln 
counties. 

(C) Monday to Saturday of the second week before 
Thanksgiving week in the counties and parts of 
counties having the open season for Deer With 
Visible Antlers specified by Part (D) of 
Subparagraph (b)(1) of this Rule, and on 
Sandhills Game Land. 

(2) Restrictions: 

(A) Deer of either sex may be taken during muzzle- 
loading firearms season in and east of the 
following counties: Rutherford, McDowell, 
Burke, Caldwell, Wilkes, and Ashe. Deer of 
either sex may be taken on the last day of 
muzzle-loading firearms season in all other 
counties. 

(B) Dogs shall not be used for hunting deer during 
the muzzle-loading firearms seasons. 

(C) Pistols shall not be carried while hunting deer 



during the muzzle-loading firearms seasons. 

(e) The In those counties listed in part (A) of Subparagraph 
(b)(1) of this Rule the daily bag limit shall be two and the 
possession limit six, two of which shall be antlerless. The 
season limit shall be six, two of which shall be antlerless. In all 
other counties, the daily bag limit shall be two and the 
possession limit six, four of which shall be anterless. The 
season limit shall be six^ four of which shall be antlerless. 
Antlerless deer include males with knobs or buttons covered by 
skin or velvet as distinguished from spikes protruding through 
the skin. The antlerless bag limits described above do not apply 
to antlerless deer harvested in areas covered in the Deer 
Management Assistance Program as described in G.S. 113- 
291.2(e). Individual daily antlerless bag limits on these areas 
shall be determined by the number of special tags, issued by the 
Division of Wildlife Management as authorized by the 
Executive Director, that shall be in the possession of the hunter. 
Season antlerless bag limits shall be set by the number of tags 
available. All antlerless deer harvested on these areas, 
regardless of the date of harvest, shall be tagged with these 
special tags but do not have to be tagged with Dig Game Tags 
the hunter does not have to validate the Big Game Harvest 
Report Card provided with the hunting license. 

(0 Kill Reports. The ca r cass of each deer shall be tagged 
The kill shall be validated at the site of kill and the kill 
reported as provided by 15A NCAC 1 OB .01 13. 

Authority G.S. 113-134; 113-270.3; 113-276.1; 113-291.1; 
113-291.2. 

.0209 WILD TURKEY (BEARDED TURKEYS ONLY) 

(a) Open Season for wild turkey shall be from the: Second 
Saturday in April to Saturday of the fourth week thereafter on 
bearded turkeys in the following counties: Alamance, 
Alexander, Alleghany, Anson. Ashe, Avery, **Bladen, 
Buncombe, Burke, Caldwell, Caswell, Catawba, **Chatham, 
Cherokee, Chowan. Clay, Cleveland, Craven. Davie, Duplin, 
**Durham, Edgecombe, Forsyth, Franklin, Gaston. Gates, 
Graham, **Granville, Halifax, Harnett, Haywood, Henderson, 
Hertford, Jackson, Jones, Lee, Lenoir. Lincoln, Macon, 
Madison, McDowell, Mitchell, Montgomery, Moore, 
Northampton, Onslow, **Orange, Person, Polk, **Richmond, 
Rockingham, Rutherford, **Scotland, Stokes, Surry, Swain, 
Transylvania, Vance, Wake, Washington. Warren, Watauga, 
Wilkes, Yadkin, Yancey and in the following portions of 
counties: 

Anson : That part east of US 52 and north of US 

74 and that part east of NC 145 and south of US 

■U-. 

Beaufort: That part south of the Pamlico River and 

east of US 17. 

**Bertie: All of the county except that part bounded 

on the west by NC II. on the south by NC 308. on 

the east by NC 45. and on the north by NC 42 and 

the Hertford County line, south of NC 42. west of 

NC 45. no r th of NC 308, and east of usI3. 



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Brunswick: That part west of NC 21 1 and that part 

east of NC 87. 

Cabarrus: That part south of 1-85, east of US 601 

Business, and north of NC 49. 

Camden: That part west of US 17. 

Carteret: That part west of US 70 and north of NC 

24. 

Chowan: That pa r t s outh of US 17 

Columbus: That part north of NC 87 and that part 

east of NC 905 and south of NC 130. 

the county except that part west of 

Cumberland: That part west of NC 53 or 1-95. 
Currituck: That part north of US 158 and west of 
the Intracoastal Waterway. 

Davidson: That part south of 1-85. 

Fr anklin : All of the county except that part n orth of 

the Ta r River and west of US 401 . 

Guilford: That part north of 1-40. 

Hoke: That part south and west of NC 21 1 and that 

part known as Fort Bragg. 

Hyde: Starting at the Tyrrell County line, that part 

west of a line formed by NC 94, US 264 West, 

SRI 124 to Judges Quarter then Quarter Canal to 

Juniper Bay. 

Iredell: That part north of US 70. 

Johnston: That part east of 1-95. 

**Martin: All of the county except that part west of 

US 1 7 and south of US 64. 



'^Moo r e : That i 



: north 



pa r t south ot NC 2 1 1 . that part i 
of NC 24/27. and that part known as Fort B r agg. 
Nash: All of the county except that part east of NC 
581 and south of US 64. 

New Hanover: Starting at the Brunswick County line, 
that part north and west of a line formed by NC- 1 33 
andSR 1002. 

Pamlico: That part west of NC 306. 
**Pender: All of the county except that part west of 
1-40, north of NC 53, and east of US 42 1 . 
Perquimans: That pa r t west of the Perquimans 
Rive r and south of SR 1110 and US 17 Business. 
All of the county except that part south of US 17 
and east of the Perquimans River. 
Randolph: That part west of US 220. 22Qand north of 
US 64 and that part west of US 220 and south of NC 
49: 

Robeson: That part east of 1-95 and north of US 74. 
Rowan: That part southeast of 1-85. 
Sampson: All of the county except that part east of 
NC 242, south of NC 4 11 , and west of US 70 1 . 
Stanly: That part east of a line formed by US 52 
from the Cabarrus County line to NC 138 in 
Albemarle. NC 138 from Albemarle to NC 742 in 
Oakboro, and NC 742 from Oakboro to the Union 
County line. 
Union: That part south of US 74. NC 74 and west of 



NC207 

**Wak e: That p art north of 1-40. 

Wayne: That part south of US-70. US 70a n d east of 

US-1 17 a n d that p a r t south of SR 1007 and no r th of 

SR 1008. 

**The Sandhills Game Land in Richmond, Scotland, 

and Moore Counties, counties, the Bladen Lakes State 

Forest Game Lands in Bladen County, the Northeast 

Cape Fear Wetlands Game Lands in Pender County, 

the Jordan Game Land in Chatham, Durham, Orange, 

and Wake Counties, and counties, the Butner-Falls of 

the Neuse Game Land in Durham, Granville, and 

Wake Counties, counties, and the Roanoke River 

Wetlands in Bertie, Halifax, and Martin C ounties 

counties, and the Shearon-Harris Game Land in 

Chatham and Wake counties are closed to turkey 

hunting except by holders of special permits 

authorizing turkey hunting as provided in G.S. 

113-264(d). 

(b) Bag Limits shall be: 

(1) daily, one; 

(2) possession, two; 

(3) season, two. 

(c) Dogs Prohibited. It is unlawful to use dogs for hunting 
turkeys. 

(d) Kill Reports. The kill shall be validated at the site of 
kill Tl i e ca r cass of each wild turkey shall be tagged and the kill 
reported as provided by I5A NCAC 1 OB .01 13. 

Authority G.S. 113-134: 113-270.3: 113-276.1: 113-291.2. 

SUBCHAPTER IOC - INLAND FISHING 
REGULATIONS 

SECTION .0200 - GENERAL REGULATIONS 

.0205 PUBLIC MOUNTAIN TROUT WATERS 

(a) Designation of Public Mountain Trout Waters. The 
waters listed herein or in 15A NCAC lOD ^0004 .0104 are 
designated as Public Mountain Trout Waters and further 
classified as Wild Trout Waters or Hatchery Supported Waters. 
For specific classifications, see Subparagraphs (1) through (6) 
of this Paragraph. These waters are posted and lists thereof are 
filed with the clerks of superior court of the counties in which 
they are located: 

(1) Hatchery Supported Trout Waters. The listed waters 
in the counties in Subparagraphs (l)(A)-(Y) are 
classified as Hatchery Supported Public Mountain 
Trout Waters. Where specific watercourses or 
impoundments are listed, indentation indicates that 
the watercourse or impoundment listed is tributary to 
the next preceding watercourse or impoundment listed 
and not so indented. This classification applies to the 
entire watercourse or impoundment listed except as 
otherwise indicated in parentheses following the 
listing. Other clarifying information may also be 



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969 



PROPOSED RULES 



included parenthetically. The tributaries of listed 
watercourses or impoundments are not included in the 
classification unless specifically set out therein. 
Otherwise, Wild Trout regulations apply to the 
tributaries. 

(A) Alleghany County: 
New River (not trout water) 

Little River (Whitehead to McCann Dam) 

Crab Creek 

Brush Creek (except where posted against 

trespass) 

Big Pine Creek 

Laurel Branch 

Big Glade Creek 

Bledsoe Creek 

Pine Swamp Creek 

South Fork New River (not trout water) 

Prather Creek 

Cranberry Creek 

Piney Fork 

Meadow Fork 
Yadkin River (not trout water) 
Roaring River (not trout water) 
East Prong Roaring River (that portion on 
Stone Mountain State Park) Delayed Harvest 
Waters regulations apply. See Subparagraph 
(5) of Paragraph (a) of this Rule. 

(B) Ashe County: 

New River (not trout waters) 

North Fork New River (Watauga Co. line to 
Sharp Dam) 

Helton Creek (Virginia State line to New 

River) [Delayed Harvest rules apply. See 

Subparagraph (5) of Paragraph (a) of this 

Rule.] 

Big Horse Creek (SR 1361 bridge to 

Tuckerdale) 

Buffalo Creek (headwaters to junction of 

NC 194-88 and SR 1131) 

Big Laurel Creek 

Three Top Creek (portion not on game 

lands) 

Hoskins Fork (Watauga County line to 

North Fork New River) 
South Fork New River (not trout waters) 

Cranberry Creek (Alleghany County line to 

South Fork New River) 

Nathans Creek 

Peak Creek (headwaters to Trout Lake, 

except Blue Ridge Parkway waters) 

Trout Lake (Delayed harvest regulations 

apply. See Subparagraph (5) of Paragraph 

(a) of this Rule.) 

Roan Creek 

North Beaver Creek 

Pine Swamp Creek (all forks) 

Old Fields Creek 



Mill Creek (except where posted against 
trespass) 

(C) Avery County: 

Nolichucky River (not trout waters) 

North Toe River (headwaters to Mitchell 
County line, except where posted against 
trespass) 

Squirrel Creek 
Elk River (SR 1306 crossing to Tennessee 
State line, including portions of tributaries on 
game lands) 

Catawba River (not trout water) 
Johns River (not trout water) 
Wilson Creek [not Hatchery Supported 
trout water, see Subparagraph (2) of 
Paragraph (a) of this Rule] 

Lost Cove Creek [not Hatchery 

Supported trout water, see 

Subparagraph (4) of Paragraph (a) of 

this Rule] 

Buck Timber Creek [not Hatchery Supported 

trout water, see Subparagraph (2) of Paragraph 

(a) of this Rule] 

Cary Flat Branch [not Hatchery Supported 
trout water, see Subparagraph (2) of Paragraph 
(a) of this Rule] 

Boyde Coffey Lake 
Archie Coffey Lake 
Linville River [Land Harbor line (below dam) to 
Blue Ridge Parkway boundary line, except where 
posted against trespass] 
Milltimber Creek 

(D) Buncombe County: 

French Broad River (not trout water) 

Big Ivy Creek (Ivy River) (Dillingham Creek 
to US 19-23 bridge) 

Dillingham Creek (Corner Rock Creek to 

Big Ivy Creek) 

Stony Creek 

Mineral Creek (including portions of 

tributaries on game lands) 

Corner Rock Creek (including tributaries, 

except Walker Branch) 
Reems Creek (Sugar Camp Fork to US 19-23 
bridge, except where posted against trespass) 
Swannanoa River (SR 2702 bridge near 
Ridgecrest to Sayles Bleachery in Asheville, 
except where posted against trespass) 
Bent Creek (headwaters to N.C. Arboretum 
boundary line, including portions of tributaries 
on game lands) 

Lake Powhatan 
Cane Creek (headwaters to SR 3138 bridge) 

(E) Burke County: 

Catawba River (not trout water) 

South Fork Catawba River (not trout water) 
Henry Fork (lower South Mountains State 



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\ 



I 



Park line downstream to SR 1919 at Ivy 
Creek) 

Jacob Fork (Shinny Creek to lower 
South Mountain State Park boundary) 
Delayed Harvest 

Regulations apply. See 

Subparagraph (a)(5) of this Rule. 
Johns River (not trout water) 

Parks Creek (portion not on game lands not 
trout water) 

Carroll Creek (game lands portion 
above SR 1405 including tributaries) 
Linville River (game lands portion below the 
Blue Ridge Parkway including portions of 
tributaries on game lands and from first bridge 
on SR 1223 below Lake James powerhouse to 
Muddy Creek) 

(F) Caldwell County: 
Catawba River (not trout water) 

Johns River (not trout water) 

Wilson Creek (Phillips Branch to Browns 
Mountain Beach dam, except where posted 
against trespass) 

Estes Mill Creek (not trout water) 
Thorps Creek (falls to NC 90 bridge) 
Mulberry Creek (portion not on game lands not 
trout water) 

Boone Fork (not Hatchery Supported trout 
water. See Subparagraph (2) of Paragraph 
(a) of this Rule) 
Boone Fork Pond 

(G) Cherokee County: 
Hiwassee River (not trout water) 

Shuler Creek (headwaters to Tennessee line, 

except where posted against trespass including 

portions of tributaries on game lands) 

North Shoal Creek (Crane Creek) (headwaters 

to SR 1 325, including portions of tributaries on 

game lands) 

Persimmon Creek 

Davis Creek (including portions of tributaries 

on game lands) 

Bald Creek (including portions of 

tributaries on game lands) 
Beaver Dam Creek (headwaters to SR 1326 
bridge, including portions of tributaries on 
game lands) 
Valley River 

Hyatt Creek (including portions of 

tributaries on game lands) 

Webb Creek (including portions of 

tributaries on game lands) 

Junaluska Creek (Ashtum Creek to Valley 

River, including portions of tributaries on 

game lands) 
(H) Clay County: 



Hiwassee River (not trout water) 

Fires Creek (first bridge above the lower game 

land line on US Forest Service road 442 to SR 

1300) 

Tusquitee Creek (headwaters to lower SR 1 300 

bridge, including portions of Bluff Branch on 

game lands) 

Tuni Creek (including portions of 
tributaries on game lands) 
Chatuge Lake (not trout water) 
Shooting Creek (SR 1349 bridge to US 64 
bridge at SR 1338) 

Hothouse Branch (including portions of 
tributaries on gamelands) 
Vineyard Creek (including portions of 
tributaries on game lands) 
(I) Graham County: 

Little Tennessee River (not trout water) 

Calderwood Reservoir (Cheoah Dam to 
Tennessee State line) 
Cheoah River (not trout water) 
Yellow Creek 

Santeelah Reservoir (not trout water) 
West Buffalo Creek 

Huffman Creek (Little Buffalo 
Creek) 
Santeelah Creek (Johns Branch to 
mouth including portions of tributaries 
within this section located on game 
lands, excluding Johns Branch) 
fitg (Big) Snowbird Creek (old railroad 
junction to mouth, including portions of 
tributaries on game lands) Delayed Harvest 
regulations apply to the portion, including 
tributaries, from the old railroad junction to 
the game lands boundary at Polecat Branch. 
Mountain Creek (game lands boundary to 
SR 1138 bridge) 

Long Creek (portion not on game lands) 
Tulula Creek (headwaters to lower 
bridge on SR 1275) 
Franks Creek 
Cheoah Reservoir 
Fontana Reservoir (not trout water) 
Stecoah Creek 
Sawyer Creek 

Panther Creek (including portions of 
tributaries on game lands) 
(J) Haywood County: 

Pigeon River (not trout water) 

Hurricane Creek (including portions of 

tributaries on game lands) 

Cold Springs Creek (including portions of 

tributaries on game lands) 

Jonathans Creek - lower (concrete bridge in 

Dellwood to Pigeon River) 



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PROPOSED RULES 



Jonathans Creek - upper [SR 1302 bridge 
(west) to SR 1307 bridge] 
Hemphill Creek 

West Fork Pigeon River (triple arch bridge 
on highway NC 215 to Champion 
International property line, including 
portions of tributaries within this section 
located on game lands, except Middle 
Prong) 
Richland Creek (Russ Avenue bridge to US 
19A-23 bridge) Delayed Harvest Regulations 
apply. See Subparagraph (a)(5) of this Rule. 
(K) Henderson County: 

(Rocky) Broad River (one-half mile north of 

Bat Cave to Rutherford County line) 

Green River - upper (mouth of Bobs Creek to 

mouth of Rock Creek) 

Green River - lower (Lake Summit Dam to 

Polk County line) 1-26 bridge) 

Camp Creek (SR 1 9 1 9 to Polk County line) 
(Big) Hungry River 
Little Hungry River 
French Broad River (not trout water) 
Mills River (not trout water) 

North Fork Mills River (game lands portion 
below the Hendersonville watershed dam). 
Delayed Harvest Regulations apply. See 
Subparagraph (a)(5) of this Rule. 
(L) Jackson County: 

Tuckasegee River (confluence with West Fork 
Tuckasegee River to SR 1392 bridge at 
Wilmot) Delayed Harvest Regulations apply to 
that portion between NC 107 bridge at Love 
Field and NC 116 bridge at Webster the 
Dillsboro dam. See Subparagraph (a)(5) of 
this Rule. 

Scott Creek (entire stream, except where 
posted against trespass) 

Dark Ridge Creek (Jones Creek to Scotts 
Creek) 

Buff Creek (SR 1457 bridge below Bill 
Johnson's place to Scott Creek) 
Savannah Creek (Headwaters to Bradley's 
Packing House on NC 1 16) 

Greens Creek (Greens Creek Baptist 
Church on SR 1730 to Savannah Creek) 
Cullowhee Creek (Tilley Creek to Tuckasegee 
River) 

Bear Creek Lake 

Wolf Creek [not Hatchery Supported trout 
water, see Subparagraph (2) of Paragraph (a) 
of this Rule] 

Wolf Creek Lake 
Balsam Lake 
Tanasee Creek [not Hatchery Supported trout 
water, see Subparagraph (2) of Paragraph (a) 



of this Rule] 

Tanasee Creek Lake 
West Fork Tuckasegee River (Shoal Creek to 
existing water level of Little Glenville Lake) 

Shoal Creek (Glenville Reservoir pipeline 

to mouth) 
(M) Macon County: 

Little Tennessee River (not trout water) 

Nantahala River (Nantahala Dam to Swain 
County line) Delayed Harvest Regulations 
apply to the portion from Whiteoak Creek to 
the Nantahala Power and Light powerhouse 
discharge canal. See Subparagraph (a)(5) of 
this Rule. 

Queens Creek Lake 

Burningtown Creek (including portions of 
tributaries on game lands) 
Cullasaja River (Sequoah Dam to US 64 bridge 
nearjunctionof SR 1672, including portions of 
tributaries on game lands, excluding those 
portions of Big Buck Creek and Turtle Pond 
Creek on game lands. Wild trout regulations 
apply. See Subparagraphs (2) and (6) of 
Paragraph (a) of this Rule.) 

Ellijay Creek (except where posted against 

trespass, including portions of tributaries on 

game lands) 

Skitty Creek 
Cliffside Lake 

Cartoogechaye Creek (US 64 bridge to 

Little Tennessee River) 

Tessentee Creek (Nichols Branch to Little 

Tennessee River, except where posted 

against trespassing) 
Savannah River (not trout water) 

Big Creek (base of falls to Georgia State 

line, including portions of tributaries within 

this Section located on game lands) 
(N) Madison County: 

French Broad River (not trout water) 

Shut-in Creek (including portions of tributaries 
on game lands) 

Spring Creek (junction of NC 209 and NC 63 
to lower US Forest Service boundary line, 
including portions of tributaries on game lands) 

Meadow Fork Creek 

Roaring Fork (including portions of 
tributaries on game lands) 
Little Creek 

Max Patch Pond 

Mill Ridge Pond 
Big Laurel Creek (Mars Hill Watershed 
boundary to Rice's Mill Dam) 
Big Laurel Creek (NC 208 bridge to US 25- 
70 bridge) Delayed Harvest Regulations 
apply. See Subparagraph (a)(5) of this 
Rule. 



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► 



\ 



Shelton Laurel Creek (headwaters to NC 

208 bridge) 

Shelton Laurel Creek (NC 208 bridge at 

Belva to the confluence with Big Laurel 

Creek) Delayed Harvest Regulations 

apply. See Subparagraph (a)(5) of this 

Rule. 

Big Creek (headwaters to lower game 
land boundary, including tributaries) 
Mill Creek 
Big Pine Creek 

Puncheon Fork (Hampton Creek to Big 
Laurel Creek) 
(O) McDowell County; 

Catawba River (portion not on game lands, not 
trout water) 

Buck Creek (portion not on game lands, not 
trout water) 

Little Buck Creek (game land portion 
including portions of tributaries on game 
lands) 
Curtis Creek (Newbe rr y C r eek to US 70 
b ri dge) game lands portion downstream of US 
Forest Service boundary at Deep Branch) 
Delayed Harvest regulations apply. See 
Subparagraph (a)(5) of this Rule. 
North Fork Catawba River (headwaters to SR 
1569 bridge) 

Armstrong Creek (Cato Holler line 
downstream to upper Greenlee line) 
Mill Creek (upper railroad bridge to U.S. 70 
Bridge, except where posted against trespass) 
(P) Mitchell County: 

Nolichucky River (not trout water) 

Big Rock Creek (headwaters to NC 226 bridge 
at SR 1307 intersection) 

Little Rock Creek (Green Creek Bridge to 
Big Rock Creek, except where posted 
against trespass) 
Cane Creek (SR 1219 to Nolichucky r ive r ) 
NC 226 bridge) 

Cane Creek (NC 226 bridge to NC 80 
bridge) Delayed Harvest Regulations apply. 
See Subparagraph (a)(5) of this Rule. 
Grassy Creek (East Fork Grassy Creek to 
mouth) 

East Fork Grassy Creek 
North Toe River (Avery County line to SR 
1121 bridge) 
(Q) Polk County: 

Broad River (not trout water) 

North Pacolet River (Pacolet Falls to NC 108 
bridge) 

Fork Creek (Fork Creek Church on SR 

1 100 to North Pacolet River) 

Big Fall Creek (portion above and below 



water supply reservoir) 
Green River (Hende r so n — County — Hne 
(Fishtop Falls Access Area to mouth of 
Brighls Creek) Delayed Harvest regulations 
apply to the portion from Fishtop Falls Access 
Area to Cove Creek. See subparagraph (a)(5) 
of this Rule. 

Little Cove Creek (including portions of 
tributaries on game lands) 
Cove Creek (including portions of 
tributaries on game lands) 
Camp Creek [Henderson County line (top 
of falls) to Green River] 
Fulloms C r eek (SR 1 154 to Green River, 
i n cluding po r tio n s of tributaries on game 
lands) 
(R) Rutherford County: 

(Rocky) Broad River (Henderson County line 
to US 64/74 bridge, except where posted 
against trespass) 
(S) Stokes County: 

Dan River (SR 1416 bridge downstream to a point 
200 yards below the end of SR 1 42 1 ) 
(T) Surry County: 

Yadkin River (not trout water) 

Ararat River (SR 1727 downstream to the 
Business US 52 bridge) Delayed Harvest 
regulations apply. See Subparagraph (5) of 
Paragraph (a) of this Rule. 

Stewarts Creek (not trout water) 

Pauls Creek (Virginia State line to 0.3 
mile below SR 1625 bridge - lower 
Caudle property line) 
Fisher River (Cooper Creek) (Virginia 
State line to NC 89 bridge) 

Little Fisher River (Virginia State 
line to NC 89 bridge) 
Mitchell River (0.6 mile upstream of the end 
of SR 1333 to Kapps Mill Dam) Delayed 
Harvest Regulations apply. See 
Subparagraph (5) of Paragraph (a) of this 
Rule. 
(U) Swain County: 

Little Tennessee River (not trout water) 

Calderwood Reservoir (Cheoah Dam to 

Tennessee State line) 

Cheoah Reservoir 

Fontana Reservoir (not trout water) 

Alarka Creek (game lands boundary to 
Fontana Reservoir) 

Nantahala River (Macon County line to 
existing Fontana Reservoir water level) 
Tuckasegee River (not trout water) 

Deep Creek (Great Smoky Mountains 
National Park boundary line to Tuckasegee 
River) 



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973 



PROPOSED RULES 



Connelly Creek (including portions of 
tributaries on game lands) 
(V) Transylvania County: 

French Broad River (junction of west and north 
forks to US 276 bridge) 

Davidson River (Avery Creek to Ecusta intake) 
East Fork French Broad River (Glady Fork to 
French Broad River) 
Middle Fork French Broad River 
West Fork French Broad River (SR 1312 and 
SR 1309 intersection to junction of west and 
north forks, including portions of tributaries 
within this section located on game lands) 
(W) Watauga County: 

New River (not trout waters) 

North Fork New River (from confluence with 
Maine and Mine branches to Ashe County line) 
Maine Branch (headwaters to North Fork New 
River) 

South Fork New River (not trout water) 
Meat Camp Creek 

Norris Fork Creek 
Howards Creek (downstream from lower 
falls) 
Middle Fork New River (Lake Chetola Dam to 
South Fork New River) 
Yadkin River (not trout water) 

Stony Fork (headwaters to Wilkes County line) 
Elk Creek (headwaters to gravel pit on SR 
1508, except where posted against trespass) 
Watauga River (SR 1559 at Foscoe dow ns t r eam 
to NC 105 b r idge) (Confluence of Boone Fork 
and Watauga River to NC 105 bridge) Delayed 
Harvest Regulations apply. See Subparagraph (5) 
of Paragraph (a) of this Rule. 
Beech Creek 

Buckeye Creek Reservoir 
Coffee Lake 
Laurel Creek 

Cove Creek (SR 1233 bridge at Zionville to SR 
1233 bridge at Amantha) 

Dutch Creek (second bridge on SR 1 1 34 to mouth) 
Boone Fork (headwaters to SR 1562) 
(X) Wilkes County: 

Yadkin River (not trout water) 
Roaring River (not trout water) 

East Prong Roaring River (Bullhead Creek 
to Brewer's Mill on SR 1943) (Delayed 
harvest regulations apply to portion on 
Stone Mountain State Park) See 
Subparagraph (5) of Paragraph (a) of this 
Rule. 

Stone Mountain Creek (Delayed 
Harvest Regulations apply. See 
Subparagraph (5) of Paragraph (a) of 
this Rule.) 



Middle Prong Roaring River (headwaters to 
second bridge on SR 1736) 
Bell Branch Pond 
Boundary Line Pond 
West Prong Roaring River (not trout waters) 
Pike Creek 

Pike Creek Pond 
Reddies River (not trout water) 

Middle Fork Reddies River (Clear Prong) 
(headwaters to bridge on SR 1580) 

South Fork Reddies River (headwaters 

to confluence with Middle Fork Reddies 

River) 

North Fork Reddies River (Vannoy 

Creek) (headwaters to Union School 

bridge on SR 1559) 

Darnell Creek (North Prong Reddies 
River) (downstream ford on SR 
1569 to confluence with North Fork 
Reddies River) 
Lewis Fork Creek (not trout water) 

South Prong Lewis Fork (headwaters to Lewis 
Fork Baptist Church) 

Fall Creek (except portions posted against 
trespass) 
(Y) Yancey County: 

Nolichucky River (not trout water) 

Cane River [Bee Branch (SR 1 1 10) to Bowlens 

Creek] 

Bald Mountain Creek (except portions posted 

against trespass) 

Indian Creek (not trout water) 

Price Creek (^junction of SR 1120 and 
SR 1121 to Indian Creek) 
North Toe River (not trout water) 
South Toe River (Clear Creek to lower 
boundary line of Yancey County recreation 
park except where posted against trespass) 
(2) Wild Trout Waters. All waters designated as Public 
Mountain Trout Waters on the game lands listed in 
Subparagraph (b)(2) of 15A NCAC lOD 70004 .0104 , 
are classified as Wild Trout Waters unless specifically 
classified otherwise in ( A)( 1 ) of this Rule. The trout 
waters listed in this Subparagraph are also classified 
as Wild Trout Waters. 

(A) Alleghany County: 

Big Sandy Creek (portion on Stone Mountain 

State Park) 

Ramey Creek (entire stream) 

Stone Mountain Creek (that portion on Stone 

Mountain State Park) 

(B) Ashe County: 

Big Horse Creek (Virginia State Line to SR 1361 
bridge) Catch and Release/Artificial Lures Only 
Regulations apply. See Subparagraph (a)(3) ot 
this Rule. 
- Unnamed tributary of Three Top Creek 



974 



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14:12 



PROPOSED RULES 



(portion located on Three Top Mountain Game 
Land) Catch and Release/Artificial Lures Only 
Regulations apply. See Subparagraph (a)(3) of 
this Rule. 

(C) Avery County: 
Birchfield Creek (entire stream) 
Cow Camp Creek (entire stream) 
Cranberry Creek (entire stream) 
Gragg Prong (entire stream) 
Horse Creek (entire stream) 
Jones Creek (entire stream) 
Kentucky Creek (entire stream) 
North Harper Creek (entire stream) 
Plumtree Creek (entire stream) 
Roaring Creek (entire stream) 
Rockhouse Creek (entire stream) 
South Harper Creek (entire stream) 
Webb Prong (entire stream) 

Wilson C r e e k (Catch a n d Release/Artificial 

Lu r es — Only — Re g ulat i on s — apply. See 

Sub p a r ag r a p h (a)(3) of this Rule.) 

(D) Buncombe County: 

Carter Creek (game land portion) (Catch and 
Release/Artificial Lures only regulations apply. 
See Subparagraph (3) of Paragraph (a) of this 
Rule.) 

(E) Burke County: 

All waters located on South Mountain State Park, 
except the main stream of Jacob Fork between the 
mouth of Shinny Creek and the lower park 
boundary where delayed harvest regulations, and 
Henry Fork and tributaries where catch and 
release/artificial lures only regulations apply. See 
Subparagraphs (3) and (5) of Paragraph (a) of this 
Rule. 
Nettle Branch (game land portion) 

(F) Caldwell County; 

Buffalo Creek (Watauga County line to Long 

Ridge Branch) 

Joes Creek (Watauga County line to first falls 

upstream of the end of SR 1 574) 

Rockhouse Creek (entire stream) 

(G) Cleveland County: Brier Creek and tributaries 
(game lands portions) 

(H]t€r) Graham County: 

South Fork Squally Creek (entire stream) 

Squally Creek (entire stream) 
(11 (ft) Henderson County: 

Green River (1-26 bridge to Henderson/Polk 

County line) 
(J)tF) Jackson County: 

Gage Creek (entire stream) 

North Fork Scott Creek (entire stream) 

Tanasee Creek (entire stream) 

Whitewater River (downstream from Silver Run 

Creek to South Carolina State line) 



Wolf Creek (entire stream, except Balsam Lake 
and Wolf Creek Lake) 
(K) tH Madison County: 

Spilicorn Creek (entire stream) [Wild 
Trout/Natural Bait Waters regulations apply. See 
Subparagraph (6) of Paragraph (a) of this Rule.] 
(LltK) Mitchell County: 

Green Creek (headwaters to Green Creek Bridge, 
except where posted against trespass) 
Little Rock Creek (headwaters to Green Creek 
Bridge, including all tributaries, except where 
posted against trespass) 
Wiles Creek (game land boundary to mouth) 
(M)(fc) Polk county 

Green River (Henderson County line to 
Fishtop Falls Access Area) 
PuUiam (Fulloms) Creek and tributaries (game 
lands portions) 
(N) Rutherford County: 

North Fork (First Broad River) and tributaries 
(game lands portion) 

Brier Creek and tributaries (game lands portion ) 
(0)(M) Transylvania County: 

Whitewater River (downstream from Silver 
Run Creek to South Carolina State line) 
All waters located on Gorges State Park 
IE) (N) Watauga County: 

Boone Fork (Blue Ridge Pa r kway bounda r y 
line to Watauga River ) [Catch and Release 
Fly Fishing Only regulat i ons apply. — See 
Subparagrap h (4) of Paragraph (a) of this 
Kuie.j 

Dutch C re ek (h e adwate r s to second 
br id ge on SR 1134) 

Dutch Creek (headwaters to second 
bridge on SR 1134) 

Howards Creek (headwate r s to low er 
lans; 

Howards Creek (headwaters to lower 
falls) 
Watauga River (Avery County line to SR 
1580) 
(0) fO) Wilkes County: 

Big Sandy Creek (portion on Stone Mountain 
State Park) 

Garden Creek (portion on Stone Mountain State 
Park) 

Harris Creek and tributaries [portions on Stone 
Mountain State Park) [Catch and Release Artificial 
Lures Only regulations apply. See Subparagraph 
(4) of Paragraph (a) of this Rule.] 
Widow Creek (portion on Stone Mountain State 
Park) 
(R) fP) Yancey County: 

Lickskillet Creek (entire stream) 

Middle Creek (game land boundary to mouth) 



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975 



PROPOSED RULES 



Rock Creek (game land boundary to mouth) 
South Toe River (game land boundary 
downstream to Clear Creek) 

(3) Catch and Release/ Artificial Lures Only Trout 
Waters. Those portions of designated wild trout 
waters as listed in this Subparagraph, including 
tributaries except as noted, are further classified as 
Catch and Release/Artificial Lures Only waters. Only 
artificial lures having one single hook may be used. 
No fish may be harvested or be in possession while 
fishing these streams: 

(A) Ashe County: 

Big Horse Creek (Virginia State line to SR 1361 

bridge excluding tributaries) 

Unnamed tributary of TTiree Top Creek ( portion 

located on Three Top Mountain Game Lands) 
(B^ Ave r y County : 

W i lson C r eek (game land portion) 
iBJ(€^ Buncombe County: 

Carter Creek (game land portion) 
(Qt©) Burke County: 

Henry Fork (portion on South Mountains State 

Park) 
(D) (E) Jackson County: 

Flat Creek 

Tuckasegee River (upstream of Clarke property) 
(E)(F) McDowell County: 

Newberry Creek (game land portion) 
IF1(6) Wilkes County: 

Harris Creek (portion on Stone Mountain State 

Park) 
(G) (H) Yancey County: 

Lower Creek 

Upper Creek 

(4) Catch and Release/ Artificial Hies Only Trout Waters. 
Those portions of designated wild trout waters as 
listed in this Subparagraph, including tributaries 
except as noted, are further classified as Catch and 
Release/Fly Fishing Only waters. Only artificial flies 
having one single hook may be used. No fish may be 
harvested or be in possession while fishing these 
streams: 

(A) Avery County: 

Lost Cove Creek (game land portion, excluding 
Gragg Prong and Rockhouse Creek) 

(B) Transylvania County: 

Davidson River (headwaters to Avery Creek, 
excluding Avery Creek, Looking Glass Creek and 
Grogan Creek) 
t€) Watauga County : 

Boone Fo r k (portion between Blue Ridge 
Pa r kway bounda r y and the Watauga River) 

(C) Yancey County: 

South Toe River (portion from the concrete bridge 
above Black Mountain Campgroup downstream to 
game land boundary, excluding Camp Creek and 



Big Lost Cove Creek) 
(5) Delayed Harvest Trout Waters. Those portions of 
designated Hatchery Supported Trout Waters as listed 
in this Subparagraph, excluding tributaries except as 
noted, are further classified as Delayed Harvest 
Waters. Between 1 October and one-half hour after 
sunset on the Friday before the first Saturday of the 
following June, inclusive, it is unlawful to possess 
natural bait and only artificial lures with one single 
hook may be used. No fish may be harvested or be in 
possession while fishing these streams during this 
time. These waters are closed to fishing between one- 
half hour after sunset on the Friday before the first 
Saturday in June and 6:00 a.m. on the first Saturday 
in June. At 6:00 a.m. on the first Saturday in June 
these streams open for fishing under Hatchery 
Supported Waters rules: 

(A) Ashe County: 
Trout Lake 

Helton Creek (Virginia state line to New River) 

(B) Burke County: 

Jacob Fork (Shinny Creek to lower South 
Mountains State Park boundary) 

(C) Graham County: 

(Big) Snowbird Cree k and tributaries (Old railroad 
junction to the game lands boundary at Polecat 
Branch) 

(D) (CH Haywood County: 

Richland Creek (Russ Avenue bridge to US 19A- 
23 bridge) 

(E) (©) Henderson County: 

North Fork Mills River (game land portion below 
the Hendersonville watershed dam) 

(F) (E) Jackson County; 

Tuckasegee River (NC 107 bridge at Love Field 
Downstream to NC 116 bridge at Webste r ) the 
Dillsboro dam) 

(G) (E) Macon County: 

Nantahala River (portion from Whiteoak Creek to 

the Nantahala Power and Light power house 

discharge canal) 
(HjfG) Madison County: 

Big Laurel Creek (NC 208 bridge to the US 25- 

70 bridge) 

Shelton Laurel Creek (NC 208 bridge at Belva 

to the confluence with Big Laurel Creek) 
(Ij McDowell County: 

Curtis Creek (game lands portion downstream of 

U.S. Forest Service boundary at Deep Branch 
(J](H) Mitchell County: 

Cane Creek (NC 226 bridge to NC 80 bridge) 
(K) Polk County: 

Green River (Fishtop Falls Access Area to 

confluence with Cove Creek) 
(L)ff) Surty County: 

Ararat River (SR 1727 downstream to Business 



976 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



US 52 bridge) 

Mitchell River (0.6 mile upstream of the end of 

SR 1333 to Kapps Mill Dam) 

(M) ffl Watauga County: 

Watauga River SR — 1559 bridge at Foscoe 
downstream to NC 105 bridge) (Confluence of 
Boone Fork and Watauga River to NC 105 
bridge) 
iEim Wilkes County: 

East Prong Roaring River (from Bullhead Creek 
downstream to the Stone Mountain State Park 
lower boundary) 

Stone Mountain Creek (from falls at Allegheny 

County line to confluence with East Prong 

Roaring River and Bullhead Creek in Stone 

Mountain State Park) 

(6) Wild Trout/Natural Bait Waters. Those portions of 

designated Wild Trout Waters as listed in this 

Subparagraph, including tributaries except as noted, 

are further classified as Wild Trout/Natural Bait 

Waters. All artificial lures and natural baits, except 

live fish, are allowed provided they are fished using 

only one single hook. The creel limit, size limit, and 

open season are the same as other Wild Trout Waters 

[see I5A NCAC IOC .0305(a)J. 

(A) Cherokee County: 

Tellico River (Fain Ford to Tennessee state line 
excluding tributaries) 

(B) Clay County: 

Buck Creek (game land portion downstream of US 
64 bridge) 

(C) Graham County: 
Deep Creek 

Long Creek (game land portion) 

(D) Jackson County: 

Chattooga River (SR 1100 bridge to South 
Carolina state line) 

(lower) Fowler Creek (game land portion) 
Scotsman Creek (game land portion) 

(E) Macon County: 

Chattooga River (SR 1100 bridge to South 

Carolina state line) 

Jarrett Creek (game land portion) 

Kimsey Creek 

Overfiow Creek (game land portion) 

Park Creek 

Tellico Creek (game land portion) 

Turtle Pond Creek (game land portion) 

(F) Madison County: 

Spillcorn Creek (entire stream, excluding 
tributaries) 

(G) Transylvania County: 

North Fork French Broad River (game land 
portions downstream of SR 1326) 
Thompson Ri ver (SR 1 1 52 to South Carolina state 
line, except where posted against trespass. 



including portions oftributaries within this section 
located on game lands) 
(b) Fishing in Trout Waters: 

(1) Hatchery Supported Trout Waters. It is unlawful to 
take fish of any kind by any manner whatsoever from 
designated public mountain trout waters during the 
closed seasons for trout fishing. The seasons, size 
limits, creel limits and possession limits apply in all 
waters, whether designated or not, as public mountain 
trout waters. Except in power reservoirs and city 
water supply reservoirs so designated, it is unlawful 
to fish in designated public mountain trout waters 
with more than one line. Night fishing is not allowed 
in most hatchery supported trout waters on game 
lands [see 1 5 A NCAC 1 OD .0004(b)(1) .0104(b)(l)1. 

(2) Wild Trout Waters. Except as otherwise provided in 
Subparagraphs (3), (4), and (6) of Paragraph (a) of 
this Rule, the following rules apply to fishing in wild 
trout waters. 

(A) Open Season. There is a year round open 
season for the licensed taking of trout. 

(B) Creel Limit. The daily creel limit is four trout. 

(C) Size Limit. The minimum size limit is seven 
inches. 

(D) Manner of Taking. Only artificial lures having 
only one single hook may be used. No person 
shall possess natural bait while fishing wild 
trout waters except those waters listed in 15A 
NCAC IOC .0205(a)(6). 

(E) Night Fishing. Fishing on wild trout waters is 
not allowed between one-half hour after sunset 
and one-half hour before sunrise. 

Authorises. } 13-134: 113-272: 113-292. 

.0206 TROTLINES AND SET-HOOKS 

Trotlines and set-hooks may be set in the inland waters of 
North Carolina, provided no live bait is used; except that no 
trotlines or set-hooks may be set in designated public mountain 
trout waters or in any of the impounded waters on the Sandhills 
Game Land, Land, and in In Lake Waccamaw, trotlines or set- 
hooks may be set only from October I through April 30. For the 
purposes of this Regulation, a set-hook is defined as any hook 
and line which is attached at one end only to a stationary or 
fioating object and which is not under immediate control and 
attendance of the person using such device. Each trotline shall 
have attached the name and address of the user legibly and 
indelibly inscribed. Each trotline shall be conspicuously marked 
at each end with a flag, float, or other prominent object so that 
its location is readily discernable by boat operators and 
swimmers. Trotlines must be set parallel to the nearest shore in 
ponds, lakes, and reservoirs. All trotlines and throwlines must 
be fished at least once daily and all fish removed at that time. 
Untended trotlines, as evidenced by the absence of bait, may be 
removed from the water by wildlife enforcement officers when 
located in areas of multiple water use. 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



977 



PROPOSED RULES 



Recognizing the safety hazards to swimmers, boaters and water 
skiers which are created by floating metal cans and glass jugs, 
it is unlawful to use metal cans or glass jugs as tloats. This shall 
not be construed to prohibit the use of plastic jugs, cork. 



styrofoam, or similar materials as floats. 
Authorises. 113-134; 113-272; 113-292. 



SECTION .0300 - GAME FISH 

.0305 OPEN SEASONS: CREEL AND SIZE LIMITS 

(a) Generally. Subject to the exceptions listed in Paragraph (b) of this Rule, the open seasons and creel and size limits are as 
indicated in the following table: 



GAME FISHES 



DAILY CREEL 
LIMITS 



MINIMUM 
SIZE LIMITS 



OPEN SEASON 



Mountain Trout: 
Wild Trout 
Waters 

Hatchery Sup- 
ported Trout 
Waters and 
undesignated 
waters 

Muskellunge and 
Tiger Musky 

Chain Pickerel 
(Jack) 



7 in. 



None 



None 



30 in. 



None 



ALL YEAR 

(exc. 2) 

All year, except 
March 1 to 6:00 a.m. 
on first Saturday 
in April 
(exc. 2) 

ALL YEAR 



ALL YEAR 



Walleye 



Sauger 

Black Bass: 
Largemouth 



Smallmouth 
and Spotted 

White Bass 

Sea Trout (Spotted 
or Speckled) 

Flounder 

Red drum (channel 
bass, red fish, 
puppy drum) 

Striped Bass 
and their hybrids 



None 



(exes. 8 & 9) (exc. 


«] 




8 




15 in. 


5 




14 in. 
(exes. 3,7 & +6) 9] 


(exc. y) 


5 




12 in. 
(exes. 3,7 & +6) 9} 


(exc. y; 


25 




None 


10 




12 in. 


None 




! 3 in. 


52 




18 in. 



(exc. 19) 



8 aggregate 16 in. 

(exes. Lt&tS) 1 5 & 12} (exes. 1 , 5 & t+) 10) 



ALL YEAR 

(exc. 8) 

ALL YEAR 



ALL YEAR 

(exc. +7)16] 

ALL YEAR 



ALL YEAR 
ALL YEAR 

ALL YEAR 
ALL YEAR 



ALL YEAR 

(exes. 5, 13, & 15) 12 & 14} 



978 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(Morone Hybrids) 

Shad: (American 
and hickory) 

Kokanee Salmon 



1 aggregate 
{cxc.m 12} 



None 



None 



ALL YEAR 

(exes. 18 & 19) 17 &I81 

ALL YEAR 



Panfishes 



NONGAME nSHES 



None 
(exes. 4, 12,& 1 6 ) JI & 15} 

None 
(exc. U) ID 



(b) Exceptions: 

( 1 ) In the Dan River upstream from its confluence with 
Bannister River to the Brantly Steam Plant Dam, and 
in John H. Kerr, Gaston, and Roanoke Rapids 
Reservoirs, and Lake Norman, the creel limit on 
striped bass and Morone hybrids is four in the 
aggregate and the minimum size limit is 20 inches. 

(2) In designated public mountain trout waters the season 
for taking all species of fish is the same as the trout 
fishing season. There is no closed season on taking 
trout from Nantahala River and all tributaries 
(excluding impoundments) upstream from Nantahala 
Lake, and the impounded waters of power reservoirs 
and municipally-owned water supply reservoirs open 
to the public for fishing. 

(3) Bass taken from Calderwood Reservoir may be 
retained without restriction as to size limit. 

(4) On Mattamuskeet Lake, special federal regulations 
apply. 

(5) In the inland fishing waters of Cape Fear, Neuse, Pee- 
Dee, Pungo and Tar-Pamlico rivers and their 
tributaries and the Roanoke Rive r and its t rib utaries, 
i n cludi n g the Cashie, Middle, and Eastmost rive r s, 
exte n d ing upstream to the first impoundment, and 
Lake Mattamuskeet, the daily creel limit for striped 
bass and their hybrids is three fish in aggregate and 
the minimum length limit is 18 inches. In the 
Roanoke River and its tributaries, including the 
Cashie, Middle, and Eastmost rivers, extending 
upstream to the first impoundment, the daily creel 
limit for striped bass and their hybrids is two fish in 
aggregate and the minimum length limit is 1 8 inches. 



» 



(6) 



In the Roanoke River and its tributaries, including the 
Cashie. Middle, and Eastmost rivers from rivers, in 
the Tar-Pamlico River and its tributaries 
upstream of the Grimesland bridge and in the 
Neuse River and its tributaries upstream of the 
NC 55 bridge in Lenoir County Ap r il 1 to May 31 
no ftsh striped bass or striped bass hybrids 
between the lengths of 22 inches and 27 inches shall 
be r etained, retained during the period April 1 
through May 3L 
See 15A NCAC IOC .0407 for open seasons for 



None ALL YEAR 

(exc.i^Jii (exc. 4) 

None ALL YEAR 

(exc. +4113} (exes. 6) 

taking nongame fishes by special devices. 

(7) The maximum combined number of black bass of all 
species thai may be retained per day is five fish, no 
more than two of which may be smaller than the 
applicable minimum size limit. The minimum size 
limit for all species of black bass is 14 inches, with no 
exception in Lake Luke Marion in Moore County, in 
Reedy Creek Park lakes in Mecklenburg County, in 
Lake Rim in Cumberland County, in Currituck Sound 
and tributaries north of Wright Memorial Bridge, in 
North River and tributaries in Currituck and Camden 
Counties north of a line between Camden Point and 
the end of SR 1 1 24, in High Rock Lake downstream 
of 1-85, in Badin Lake, in Falls Lake, in Lake Tillery, 
in Blewett Falls Lake, in Tuckertown Lake, and in the 
New River and its tributaries in Onslow County. In 
and west of Madison. Buncombe. Henderson and 
Polk Counties and in designated public mountain trout 
waters the minimum size limit is 12 inches. In B. 
Everett Jordan Reservoir and in Falls of the Neuse 
Reservoir, east of SR 1004, a minimum size limit of 
16 inches, with no exception, applies to largemouth 
bass. In Falls of Neu s e Reservoir, east of SR 1004, 
and Tuc k ertow n Lake n o black bass b etween the 
lengths of 12 inches and 16 inches may b e r etai n ed, 
and the minimum size limit fo r black bass is 16 
i n c h es, except that the daily c r eel may co n tain two 
black bass of less than 12 inches in length. In W. 
Kerr Scott Reservoir there is no minimum size limit 
for spotted bass. 

(8) A minimum size limit of 1 5 inches applies to walleye 
taken from Lake James and its tributaries, and the 
daily creel limit for walleye is four fish in Linville 
River upstream from the NC 1 26 bridge above Lake 
James. 

t9) The c ree l li mit fo r black bass and walleye taken f r om 
Calde r wood R e servoir is 10. 
(9) f+O) The minimum size limit for all black bass, with no 
exception, is 18 inches in the following trophy bass 
lakes: 

(A) Cane Creek Lake in Union County; 

(B) Lake Thom-A-Lex in Davidson County; and 

(C) Sutton Lake in New Hanover County. 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



979 



PROPOSED RULES 



(10) {W) In all impounded inland waters and their tributaries, 

except those waters described in Exceptions ( 1 ) and 
(5), the daily creel limit of striped bass and their 
hybrids may include not more than two fish of smaller 
size than the minimum size limit. 

(11) t+^ In Lake Tillery, Falls Lake, High Rock Lake, Badin 

Lake, Tuckertown Lake, Lake Hyco, Lake Raniseur 
and Ramseur, Cane Creek Lake and the Roanoke 
River downstream of the US 17 bridge in 
Wiliiamston and its tributaries (including the 
Cashie, Middle and Eastmost rivers and their 
tributaries) a daily creel limit of 20 fish and a 
minimum size limit of 8 inches apply to crappie. In 
Lake Jam e s. James and Hiwassee Reservoir, a daily 
creel limit of 20 fish applies to crappie. 

(12) (W) In designated inland fishing waters of Roanoke 

Sound, Croatan Sound, Albemarle Sound, Chowan 
River, Currituck Sound, Alligator River, Scuppemong 
River, and their tributaries (excluding the Roanoke 
River and Cashie River and their tributaries), striped 
bass fishing season, size limits and creel limits shall 
be the same as those established by duly adopted rules 
or proclamations of the Marine Fisheries Commission 
in adjacent joint or coastal fishing waters. 

(13) tW) The daily creel and length limits for channel, white, 

and blue catfish in designated urban lakes are 
provided for in 15A NCAC IOC .0401(d). 

(14) (+5) The Executive Director may, by proclamation, 

suspend or extend the hook-and-line season for 
striped bass in the inland and joint waters of coastal 
rivers and their tributaries. It is unlawful to violate 
the provisions of any proclamation issued under this 
authority. 

(15) H^ In the entire Lumber River from the Camp MacKall 

bridge (SR 1225, at the point where Richmond, 
Moore, Scotland, and Hoke counties join) to the 
South Carolina state line and in all public fishing 
waters east of 1-95, except Tar River Reservoir in 
Nash County, the daily creel limit for sunfish is 30 in 
aggregate, no more than 12 of which shall be 
redbreast sunfish. 

(16) f+T^ In Sutton Lake, no largemouth bass may be retained 

from December 1 through March 3 1 . 

( 17) t+8l In the Pee Dee River downstream from the Blewett 

Falls dam, shad may be taken with special fishing 
devices without restriction to creel limits as provided 
for in 15A NCAC IOC .0404 (b) during the permitted 
special fishing device seasons specified in I5A 
NCAC IOC .0407. American and hickory shad taken 
under this Subparagraph may be sold as authorized 
under subsection IOC .0401 . 

(18) f-H^ The season for taking American and hickory shad 

with dip nets and bow nets is March I through April 
30, except in Pee Dee River downstream from 
Blewett Falls dam where the season prescribed in 1 5 A 
NCAC IOC .0407 (4) and (75) is in effect. 



(19) No red drum greater than 27 inches in length may be 
retained. 

Authority G.S. 113-134; 113-292; 113-304; 113-305. 

SECTION .0400 - NONGAME FISH 

.0401 MANNER OF TAKING NONGAME FISHES: 
PURCHASE AND SALE 

(a) Except as permitted by the rules in this Section, it is 
unlawful to take nongame fishes from the inland fishing waters 
of North Carolina in any manner other than with hook and line 
or grabbling. Nongame fishes may be taken by hook and line or 
grabbling at any time without restriction as to size limits or creel 
limits, except that no trotlines or set-hooks may be used in the 
impounded waters located on the Sandhills Game Land or in 
designated public mountain trout waters, an d waters, in In 
Lake Waccamaw, trotlines or set-hooks may be used only from 
October I through April 30. The season for taking nongame 
fishes by other hook and line methods in designated public 
mountain trout waters shall be the same as the trout fishing 
season. 

(b) Nongame fishes, except bowfin, alewife and blueback 
herring taken by hook and line, grabbling or by licensed special 
devices may be sold. Eels less than six inches in length taken 
from inland waters may not be sold possessed and possession of 
eels 6 inches or larger in length is limited to 200 per day for bait. 

(c) Freshwater mussels may only be taken from impounded 
waters, except mussels shall not be taken in Lake Waccamaw 
and in University Lake in Orange County. 

(d) In the posted Community Fishing Program waters listed 
below it is unlawful to take channel, white or blue catfish 
(forked tail catfish) by means other than hook and line; the daily 
creel limit for forked tail catfish is six fish in aggregate: 

Cedarock Pond, Alamance County 

L i ttle Pa r k Po n d. Anson County 

Lake Tomahawk. Buncombe County 

Frank Liske Park Pond, Cabarrus County 

Lake Rim, Cumberland County 

C.G. Hill Memorial Park Pond, Forsyth County 

Kernersville Lake, Forsyth County 

Winston Pond, Forsyth County 

Bur-Mil Park Ponds, Guilford County 

Oka T. Hester Pond, Guilford County 

San-Lee Park Ponds, Lee County 

Kinston Neuseway Park Pond, Lenoir County 

Freedom Park Pond, Mecklenburg County 

Hornet's Nest Pond, Mecklenburg County 

McAlpine Lake, Mecklenburg County 

Lake Luke Marion, Moore County 

Lake Michael, Orange County 

River Park North Pond, Pitt County 

Big Elkin Creek, Surry County 

Apex Community Lake, Wake County 

Lake Crabtree, Wake County 

Shelley Lake, Wake County 



980 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



Simpkins Pond, Wake County 
Lake Toisnot, Wilson County 
Ellerhe Community Lake. Richmond County 

Authority G.S. 113-134; 113-272; 113-292. 

.0402 TAKING NONGAME FISHES FOR BAIT 

(a) It is unlawful to take nongame tlsh for bait in the inland 
waters of North Carolina using equipment other than: 

( 1 ) a net of dip net design not greater than six feet across; 

(2) a seine of not greater than 12 feet in length (except in 
Lake Waccamaw where there is no length limitation) 
and with a bar mesh measure of not more than 
one-fourth inch; 

(3) a cast net; 

(4) minnow traps not exceeding 12 inches in diameter 
and 24 inches in length, with funnel openings not 
exceeding one inch in diameter, and which are under 
the immediate control and attendance of the 
individual operating them. 

(b) It is unlawful to sell nongame fishes or aquatic animals 
taken under this Subchapter. 

(c) Game fishes and their young taken while netting for bait 
shall be immediately returned unharmed to the water. No person 
shall take more than 200 nongame fish for bait pursuant to this 
Subchapter from inland fishing waters during one day. It is 
unlawful to take nongame fish for bait or any other fish bait 
from designated public mountain trout waters and: 

(1) Chatham County: 
Deep River 
Rocky River 
Bear Creek 

(2) Lee County: 
Deep River 

(3) Moore County: 
Deep River 

(4) Randolph County: 

Deep River below the Coleridge Dam 
Fork Creek. 

(d) In the waters of the Little Tennessee River, the Catawba 
River upstream of Lookout Shoals Dam, including all the 
tributaries and impoundments thereof, and on adjacent 
shorelines, docks, access ramps and bridge crossings, it is 
unlawful to transport, possess or release live ale wife or live 
blueback herring. 

AuthorityG.S. 1 13-134; 113-35; 113-272; 113-272.3; 113-292. 

.0407 PERMITTED SPECIAL DEVICES AND 
OPEN SEASONS 

Except in designated public mountain trout waters, and in 
impounded waters located on the Sandhills Game Land, there is 
a year-round open season for the licensed taking of nongame 
fishes by bow and arrow. All fixed and drift gill nets must be 
attended when fished in the designated inland waters of the 
counties listed in 15A NCAC IOC .0404(b)(3). Attended as 



used in this Rule and in 15A NCAC IOC .0404(b)(3) requires 
that fisherman be within 100 yards of all sets of nets at all times. 
Seasons and waters in which the use of other special devices is 
authorized are indicated by counties below: 

( 1 ) Alamance: 

(a) July 1 to August 31 with seines in Alamance 
Creek below NC 49 bridge and Haw River; 

(b) July 1 to June 30 with gigs in all public waters; 

(2) Alexander: July 1 to June 30 with traps and gigs in 
all public waters; and with spear guns in Lake 
Hickory and Lookout Shoals Reservoir; 

(3) Alleghany: July 1 to June 30 with gigs in New River, 
except designated public mountain trout waters; 

(4) Anson: 

(a) July 1 to June 30 with traps and gigs in all 
public waters; 

(b) December 1 to June 5 with dip and bow nets in 
Pee Dee River below Blewett Falls Dam, and 
with gill nets in Pee Dee River below the lower 
end of Goat Island; 

(c) July 1 to August 31 with seines in all running 
public waters, except Pee Dee River from 
Blewett Falls downstream to the Seaboard 
Coast Line Railroad trestle; 

(5) Ashe: July I to June 30 with gigs in New River (both 
forks), except designated public mountain trout 
waters; 

(6) Beaufort: 

(a) July I to June 30 with traps in the Pungo River, 
and in the Tar and Pamlico Rivers above 
Norfolk and Southern Railroad bridge; and 
with gigs in all inland public waters; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters; with atte n ded d ri ft gill 
nets in Tar River upst r eam from the N or fo lk 
and Souther n Railroad b r idge at Washi n gton to 
the P i tt Cou n ty li n e; a n d wit h attended gill nets 
i n all othe r inland pu b l i c wate r s, except 
Blou n ts C r eek, Chocowinity Day, Du r ham 
C re ek. Mixon C r eek and Nevil C r eek and thei r 
t r ibuta r ies. 

(7) Bertie; 

(a) July 1 to June 30 with traps in the Broad Creek 
(tributary of Roanoke); 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill n ets in all inland public 
wate r s; 

(8) Bladen: 

(a) December 1 to March 1 with attended gill nets 
in all inland public waters, except Jones, 
Salters, White, Singletary and Baytree (Black) 
Lakes; 

(b) December 1 to May 1 with attended gill nets in 
Black River; 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



981 



PROPOSED RULES 



(21) 
(22) 



(c) December 1 to June 5 with dip and bow nets in 
Black River; 
(9) Brunswick: 

(a) December 1 to March 1 with attended gill nets (19) 
in all inland public waters, except Waccamaw 

River and its tributaries; 

(b) December 1 to May 1 with dip, bow, and (20) 
attended gill nets in Alligator Creek, Hoods 

Creek, Indian Creek, Orton Creek below Orton 
Pond, Rices Creek, Sturgeon Creek and Town 
Creek; 

(10) Buncombe: July 1 to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; 

(11) Burke: 

(a) July 1 to August 31 with seines in all running 
public waters, except Johns River and 
designated public mountain trout waters; 

(b) July 1 to June 30 with traps, gigs, and spear 
guns in all public waters, except designated 
public mountain trout waters and Lake James; 

(12) Cabarrus: 

(a) July 1 to August 31 with seines in all running 

public waters, (23) 

(b) July 1 to June 30 with traps and gigs in all 
public waters; 

(13) Caldwell: July 1 to June 30 with traps, gigs, and 
spear guns in all public waters, except designated 
public mountain trout waters; 

(14) Camden: 

(a) July 1 to June 30 with traps in all inland public 
waters; 

(b) December 1 to June 5 with dip and bow nets in 

all inland public waters, excluding public (24) 

lakes, ponds, and other impounded waters; and 
with attended gill nets in all inland p ublic 
waters; 

(15) Carteret: December 1 to June 5 with dip, bow, and 
atte n ded gill dip and bow nets in all inland public 
waters except South River and the tributaries of the 
White Oak River; 

(16) Caswell: 

(a) July 1 to June 30 with gigs in all public waters; 

(b) July 1 to August 31 with seines in all running 

public waters, except Moons Creek; (25) 

(c) July 1 to June 30 with traps in Hyco Reservoir; 

(17) Catawba: (26) 

(a) July 1 to August 31 with seines in all running 
public waters, except Catawba River below 
Lookout Dam; 

(b) July 1 to June 30 with traps, spear guns, and 
gigs in all public waters; 

(18) Chatham: 

(a) December 1 to April 15 with dip and gill nets 

in the Cape Fear River, Deep River, Haw River (27) 

and Rocky River (local law); 

(b) July 1 to August 31 with seines in the Cape 



Fear River, and Haw River; 
(c) July 1 to June 30 with traps in Deep River; and 

with gigs in all public waters; 
Cherokee: July 1 to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; 
Chowan: 

(a) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill nets in all inland public 
wate r s, except Dennetts Mill Pond and Dillai ' d 
Pond; 

(b) July 1 to June 30 with traps in all inland public 
waters, excluding public lakes, ponds, and 
other impounded waters; 

Clay: July 1 to June 30 with gigs in all public waters, 
except designated public mountain trout waters; 
Cleveland: 

(a) July 1 to August 31 with seines in all running 
public waters; 

(b) July 1 to June 30 with gigs, traps and spear 
guns in all public waters; 

Columbus: 



(a) 



(b) 



(c) 



December 1 to March 
in all inland public 



with attended gill nets 
waters, except Lake 

Waccamaw and its tributaries and Waccamaw 

River and its tributaries; 

December 1 to March 1 with gigs in all inland 

public waters, except Lake Waccamaw and its 

tributaries; 

December 1 to June 5 with dip, bow, and 

attended gill nets in Livingston Creek; 



Craven: 

(a) July 



(b) 



to June 30 with traps in the main run of 
the Trent and Neuse Rivers; 
December 1 to June 5 with di p , bow, and 



attended gill dip and bow nets in all inland 
public waters, except Pitch Kettle, Grindle, 
Slocum, Slocum (downstream of the US 70 
bridge). Spring and Hancock Creeks and their 
tributaries; wi t h dip a n d b ow n ets in Slocum 
C r eek a b ove the US 70 bridge; and with seines 
in the Neuse River; 

Cumberland: December 1 to March 1 with attended 

gill nets in all inland public waters; 

Currituck: 

(a) July 1 to June 30 with traps in Tulls Creek and 
Northwest River; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill n ets in Northwest River and 
Tulls C r eek; 

Dare: 

(a) July 1 to June 30 with traps in Mashoes Creek, 
Milltail Creek, East Lake and South Lake; 



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PROPOSED RULES 



(b) December 1 to June 5 with dip and bow nets in 
ail inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
w i th attended gill nets in Martin Po i nt Creek ; 

(28) Davidson: 

(a) July 1 to August 31 with seines in all running 
public waters, 

(b) July I to June 30 with gigs in all public waters, 
and with traps in all public waters except 
Leonard's Creek, Abbott's Creek below Lake 
Thom-A-Lex dam, and the Abbott "s Creek arm 
of High Rock Lake upstream from the NC 8 
bridge; 

(29) Davie: 

(a) July 1 to June 30 with traps and gigs in all 
public waters; 

(b) July I to August 31 for taking only carp and 
suckers with seines in Dutchmans Creek from 
US 601 to Yadkin River and in Hunting Creek 
from SR 1338 to South Yadkin River; 

(30) Duplin: December 1 to June 5 with dip and bow nets 
and seines in the main run of the Northeast Cape Fear 
River downstream from a point one mile above 
Serecta Bridge; 

(a) December I to March I with attended gill nets 
in Daysden Pond and in the Northeast Cape 
Fear River, inclu d ing old channels f r o m a poi nt 
o n e mile above SR 1700 (Serecta) B r idg e 
downstream to the cou n ty li ne ; 

fH Decembe r 1 to June 5 with d i p, bow, and 
attended gill nets and seines i n the main ru n of 
the Northeast Cape Fear Rive r downst r eam 
f r om a p o i nt one mile above Serecta B r idge; 

(31) Durham: 

(a) July 1 to August 31 with seines in Neuse 
River, 

(b) July I to June 30 with gigs in all public waters; 

(32) Edgecombe: 

(a) December 1 to March 15 with gill nets in 
Noble Mill Pond and Wiggins Lake; 

(b) December I to June 5 with dip and bow nets in 
all public waters; and with drift gill nets in Tar 
River below the bridge at Old Sparta to the Pitt 
County line; 

(33) Forsyth: July I to June 30 with traps and gigs in all 
public waters, except traps may not be used in Belews 
Creek Reservoir; 

(34) Franklin: 

(a) December I to March 1 with gill nets in 
Clifton Pond, Parrish Pond, Jackson Pond and 
Lake Roy ale; 

(b) July I to August 31 with seines in Tar River; 

(c) July I to June 30 with gigs in all public waters, 
except Parrish, Laurel Mill, Jackson, Clifton, 
Moore's and Perry's Ponds, and in the 
Franklinton City ponds; 



(35) Gaston: 

(a) July 1 to August 31 with seines in all running 
public waters; 

(b) July I to June 30 with gigs, traps and spear 
guns in all public waters; 

(36) Gates: December I to June 5 with dip and bow nets 
in all inland public waters, excluding public lakes, 
ponds, and other impounded waters; a n d with 
attended gill nets i n all inland public waters, exc e pt 
Williams (Me r chants Mill) Pond; 

(37) Graham: July 1 to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; 

(38) Granville: 

(a) July 1 to June 30 with gigs in all public waters, 
except Kerr Reservoir; 

(b) July 1 to August 31 with seines in the Neuse 
River and the Tar River below US 1 58 bridge; 

(c) July I to June 30 with dip and cast nets in Kerr 
Reservoir; 

(d) July I to June 30 with cast nets in all public 
waters; 

(39) Greene: December 1 to June 5 with dip, bow, and 
attended gill dip and bow nets and reels in Contentnea 
Creek; 

(40) Guilford: 

(a) July 1 to August 31 with seines in Haw River, 
Deep River below Jamestown Dam, and Reedy 
Fork Creek below US 29 bridge; 

(b) July 1 to June 30 with gigs in all public waters; 

(41) Halifax: 

(a) December 1 to March 1 with gill nets in 
White's Mill Pond; 

(b) December 1 to June 5 with dip and bow nets in 
Beech Swamp, Clarks Canal, Conoconnara 
Swamp, Fishing Creek below the Fishing 
Creek Mill Dam, Kehukee Swamp, Looking 
Glass Gut, Quankey Creek, and White's Mill 
Pond Run; 

(c) July I to June 30 with dip and cast nets in 
Gaston Reservoir and Roanoke Rapids 
Reservoir; 

(42) Harnett: 

(a) December 1 to March I with attended gill nets 
in all inland public waters; 

(b) January I to May 3 1 with gigs in Cape Fear 
River and tributaries; 

(c) December I to June 5 with dip and bow nets in 
Cape Fear River; 

(43) Haywood: July I to June 30 with gigs in all public 
waters, except Lake Junaluska and designated public 
mountain trout waters; 

(44) Henderson: July 1 to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; 

(45) Hertford: 



14:12 



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December 15, 1999 



983 



PROPOSED RULES 



(46) 
(47) 



(48) 
(49) 
(50) 



(51) 



(52) 



(53) 



(a) July 1 to June 30 with traps in Wiccacon 
Creek; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill nets i n all inland p ublic 
waters, except mill ponds; 

Hoke: December 1 to March 1 with attended gill nets 

in all inland public waters; 

Hyde: 

(a) July 1 to June 30 with traps in all inland 
waters; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill nets in Pungo River and 
tributaries upstream from US 264 bridge. 
Sc r anto n Creek, and Long Shoal Rive r a n d 
tributaries; 

Iredell: July 1 to June 30 with traps and gigs in all 

public waters; and with spear guns in Lookout Shoals 

Reservoir and Lake Norman; 

Jackson: July 1 to June 30 with gigs in all public 

waters, except designated public mountain trout 

waters; 

Johnston: 

(a) December 1 to March 1 with gill nets in 
Cattails Lake, Holts Lake, Holts Pond, and 
Wendell Lake; 

(b) December 1 to June 5 with dip and bow nets in 
Black Creek, Little River, Middle Creek, Mill 
Creek, Neuse River, and Swift Creek; 



Jones: 

(a) 



(b) 



Lee: 

(a) 



July 1 to June 30 with traps in the Trent River 
below US 17 bridge and White Oak River 
below US 17 bridge; 

December 1 to June 5 with dip, bow, and 
atte n ded gil l dip and bow nets in all inland 
public waters, except the tributaries to the 
White Oak River; R iv e r a n d its t r ibuta ri es ; 
Decembe r 1 to June 5 with dip and bow nets in 
the main r un of the White Oak River ; 
Ma r ch 1 to April 30 w i th atte n ded gill nets i n 
the main r u n of the White Oak Rive r; 



December 1 to April 15 with dip and gill nets 
(local law ) in Cape Fear River and Deep River; 
and with gill nets in Morris Pond; 

(b) July 1 to August 31 with seines in Cape Fear 
River; 

(c) July 1 to June 30 with traps in Deep River, and 
with gigs in all public waters; 

Lenoir: 

(a) July 1 to June 30 with traps in Neuse River 
below US 70 bridge at Kinston; 

(b) December 1 to June 5 with dip, bow. and 
attended gill dip and bow nets in Neuse River 



(54) 



(55) 



(56) 



(57) 



(58) 



(59) 



(60) 



(61) 



(62) 



and Contentnea Creek upstream from NC 1 1 8 
bridge at Grifton; and with seines in Neuse 
River; 
Lincoln: 

(a) July 1 to August 31 with seines in all running 
public waters; 

(b) July 1 to June 30 with traps, gigs and spear 
guns in all public waters; 

McDowell: 

(a) July 1 to August 31 with seines in all running 
public waters, except designated public 
mountain trout waters; 

(b) July 1 to June 30 with traps, gigs, and spear 
guns in all public waters, except designated 
public mountain trout waters and Lake James; 

Macon: July 1 to June 30 with gigs in all public 

waters, except designated public mountain trout 

waters; 

Madison: July 1 to June 30 with gigs in all public 

waters, except designated public mountain trout 

waters; 

Martin: December 1 to June 5 with dip and bow nets 

in all inland public waters, excluding public lakes, 

ponds, and other impounded waters; and with 

attended gill nets in all inland public waters; 

Mecklenburg: 

(a) July 1 to August 31 with seines in all running 
public waters; 

(b) July 1 to June 30 with traps, gigs and spear 
guns in all public waters except Freedom Park 
Pond and Hornet's Nest Ponds; 

Montgomery: 

(a) July 1 to August 31 with seines in all running 
public waters, except that part of the Pee Dee 
River between the Lake Tillery dam at Hydro 
and the mouth of Rocky River; 

(b) July 1 to June 30 with traps and gigs in all 
public waters; 

Moore: 

(a) December 1 to April 15 with gill nets in Deep 
River and all tributaries; 

(b) July 1 to August 31 with seines in all running 
public waters except in Deep River; 

(c) July 1 to June 30 with gigs in all public waters, 
except lakes located on the Sandhills Game 
Land; and with traps in Deep River and its 
tributaries; 



Nash 
(a) 



m 



(63) 



December 1 to March 1 with gill nets 
Boddies Pond and Camp Charles Lake; 
July 1 to June 30 with gigs in all public waters, 
except Tar River; 

December 1 to June 5 with dip and bow nets in 
the Tar River below Harris' Landing and 
Fishing Creek below the Fishing Creek Mill 
Dam; 
New Hanover: December 1 to June 5 with dip, bow. 



(b) 



(c) 



984 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(64) 



(b) 



(c) 



(65) 



(b) 



(O 



ic}m 



M)(^ 



> 



(66) 
(67) 
(68) 



and attended gill dip and bow nets in all inland public 

waters, except Sutton (Catfish) Lake; 

Northampton: 

(a) July 1 to June 30 with gigs in all public waters, 
except Gaston and Roanoke Rapids Reservoirs 
and the Roanoke River above the US 301 
bridge; 

December 1 to June 5 with dip and bow nets in 
Occoneechee Creek, Old River Landing Gut; 
and with dip, bow and gill nets in Vaughans 
Creek below Watsons Mill; 
July 1 to June 30 with dip and cast nets in 
Gaston Reservoir and Roanoke Rapids 
Reservoir; 

Onslow: 

(a) July 1 to June 30 with traps in White Oak 
River below US 17 bridge; 
August 1 to March 3 1 with eel pots in the main 
run of New River between US 17 bridge and 
the mouth of Hawkins Creek; 
D e cembe r 1 to March 1 with attended gill nets 
in Cathe r in e Lake a n d Daysde n Pond; 
December 1 to June 5 with dip, bow, and 
attended gill dip and bow nets in the main run 
of New Riv er ; and with di p and b ow nets River 
and in the main run of the White Oak River; 
March 1 to April 30 with attended gill nets in 
the main run of the White Oak Rive r ; and with 
di p , bow and attended gill dip and bow nets in 
Grant's Creek; 

Orange: 

(a) July 1 to August 3 1 with seines in Haw River, 

(b) July 1 to June 30 with gigs in all public waters; 
Pamlico: December 1 to June 5 with dip, bow, a n d 
attended gill dip and bow nets in all inland public 
waters, except Dawson Creek; 

Pasquotank: 

(a) July 1 to June 30 with traps in all inland 
waters; 

December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with atte n ded gill nets in all inland 



(70) 



(b) 



publi i 



(69) 



» 



w ate rs ; 
Pender: 

(a) December 1 to June 5 with dip, bow, and 
attended gill dip and bow nets in the Northeast 
Cape Fear River and Long C r eek; with dip and 
bow nets River, Long Creek and rn Black 
River; and with seines in the main run of 
Northeast Cape Fear River; 

(b) December 1 to May 1 with dip, bow, and 
attended gill nets in Black R i ve r ; and with d i p, 
bow, and atte n d gill dip and bow nets in 
Moore's Creek approximately one mile 
upstream to New Moon Fishing Camp; 



(71) 



(72) 



(73) 
(74) 



(75) 



(76) 
(77) 



(78) 



Perquimans: 

(a) July 1 to June 30 with traps in all inland 
waters; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding public 
lakes, ponds, and other impounded waters; and 
with attended gill nets in all inland public 
waters; 

Person: 

(a) July 1 to August 3 1 with seines in Hyco Creek 

and Mayo Creek; 

July 1 to June 30 with gigs in all public waters. 



(b) 
Pitt: 

(a) 



July 1 to June 30 with traps in Neuse River and 
in Tar River below the mouth of Hardee Creek 
east of Greenville; 

(b) December 1 to June 5 with dip, bow, and 
attended g i ll dip and bow nets and with se i nes 
in Tar Rive r ; and with dip, bow and attended 
gill nets in all other inland public waters, 
except Grindle Creek, and Contentnea Creek 
between NC 118 bridge at Grifton and the 
Neuse River; 

(c) December 1 to June 5 with seines in Tar River; 
Polk: July 1 to June 30 with gigs in all public waters, 
except designated public mountain trout waters; 
Randolph: 

(a) December 1 to March I with gill nets in Deep 
River and Uwharrie River; 

(b) July 1 to August 31 with seines in Deep River 
above the Coleridge Dam and Uwharrie River; 

(c) July 1 to June 30 with gigs in all public waters; 
Richmond: 

(a) July 1 to August 31 with seines in all running 
public waters, except Pee Dee River from 
Blewett Falls downstream to the Seaboard 
Coast Line Railroad trestle; 

(b) July 1 to June 30 with traps and gigs in all 
public waters, except lakes located on the 
Sandhills Game Land; 

(c) December 1 to June 5 with dip and bow nets in 
Pee Dee River below Blewett Falls Dam, and 
with gill nets in Pee Dee River below the 
mouth of Cartledge Creek; 

Robeson: December I to March I with attended gill 
nets and gigs in all inland public waters; 
Rockingham: 

(a) July 1 to August 31 with seines in Dan River 
and Haw River; 

(b) July 1 to June 30 with traps in Dan River; and 
with gigs in all public waters; 

Rowan: 

(a) July I to August 31 with seines in all running 
public waters, 

(b) July 1 to June 30 with traps and gigs in all 
public waters; 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



985 



PROPOSED RULES 



(c) 



(d) 

(e) 

Wake 

(a) 



(79) Rutherford: 

(a) July 1 to August 31 with seines in all running (89) Vance: 
public waters, except designated public (a) 
mountain trout waters; 

(b) July I to June 30 with traps, gigs, and spear (b) 
guns in all public waters, except designated 
public mountain trout waters; 

(80) Sampson: 

(a) December I to March 1 with attended gill nets 
in all inland public waters; 

(b) December 1 to May I with attended gill nets in 
Big Coharie Creek, Black River, and Six Runs 
Creek; 

(c) May 2 to June 5 with attended gill nets of no (90) 
less than five and one-half inch stretch measure 
in Big Coharie Creek, Black River, and Six 
Runs Creek; 

(d) December 1 to June 5 with dip and bow nets in 
Big Coharie Creek, Black River, and Six Runs 
Creek; 

(81) Scotland: December 1 to March I with attended gill (91) 
nets in all inland public waters, except lakes located 
on the Sandhills Game Land; 

(82) Stanly: 

(a) July 1 to August 31 with seines in all running 
public waters, except that part of the Pee Dee 
River between the Lake Tillery dam at Hydro 
and the mouth of Rocky River; 

(b) July 1 to June 30 with traps and gigs in all 
public waters; 

(83) Stokes: July I to June 30 with traps and gigs in all 
public waters, except designated public mountain (92) 
trout waters, and traps may not be used in Belews 
Creek Reservoir; 

(84) Surry: July 1 to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; and with traps in the main stem of Yadkin 
River; 

(85) Swain: July I to June 30 with gigs in all public 
waters, except designated public mountain trout (93) Wayne: 
waters; (a) 

(86) Transylvania: July I to June 30 with gigs in all public 
waters, except designated public mountain trout 
waters; 

(87) Tyrrell: 

(a) July 1 to June 30 with traps in Scuppernong 
River, Alligator Creek, and the drainage canals (94) 
of Lake Phelps; 

(b) December 1 to June 5 with dip and bow nets in 
all inland public waters, excluding Lake 
Phelps, public lakes, ponds and other (95) 
impounded waters; and with attended gill nets 
in Alligator Creek; 

(88) Union: 

(a) July I to August 31 with seines in all running 
public waters, 

(b) July 1 to June 30 with traps and gigs in all 



public waters; 

December I to March 1 with gill nets in 

Southerlands Pond and Ellis Pond; 

July 1 to August 31 with seines in the Tar 

River; 

July 1 to June 30 with gigs in all pubhc waters, 

except Rolands, Faulkners, Southerlands, and 

Weldon Ponds, City Lake, and Kerr Reservoir; 

July 1 to June 30 with dip and cast nets in Kerr 

Reservoir; 

July 1 to June 30 with cast nets in all public 

waters; 



July 1 to June 30 with gigs in all public waters, 
except Sunset, Benson, Wheeler, Raleigh, and 
Johnson Lakes; 

(b) December 1 to June 5 with dip and bow nets in 
the Neuse River below Milburnie Dam, and 
Swift Creek below Lake Benson Dam; 

Warren: 

(a) July 1 to August 31 with seines in Fishing 
Creek, Shocco Creek, and Walker Creek; 
excluding Duck and Hammes Mill Ponds; 

(b) July 1 to June 30 with gigs in all public waters, 
except Duck and Hammes Mill Ponds, Ken- 
Reservoir, and Gaston Reservoir; 

(c) July 1 to June 30 with dip and cast nets in Kerr 
Reservoir and Gaston Reservoir; 

(d) July 1 to June 30 with cast nets in all public 
waters; 

Washington: 

(a) July I to June 30 with traps in the drainage 
canals of Lake Phelps; 

(b) December I to June 5 with dip and bow nets in 
all inland public waters, excluding Lake 
Phelps, public lakes, ponds and other 
impoundments; and with attended gill nets in 
Conaby C r eek; 

e: 

December I to March 1 with gill nets in 
Sasser's Mill Pond and Sleepy Creek Lake; 
(b) December 1 to June 5 with dip and bow nets in 
Little River, Mill Creek, and Neuse River, 
except from Quaker Neck Dam downstream to 
SR 1008 (Tolar) bridge; 
Wilkes: July 1 to June 30 with traps in Yadkin River 
below W. Kerr Scott Reservoir; and with gigs and 
spear guns in all public waters, except designated 
public mountain trout waters; 
Wilson: 

(a) July 1 to June 30 with gigs in Contentnea 
Creek (except Buckhorn Reservoir), including 
unnamed tributaries between Flowers Mill and 
SR 1 163 (Deans) bridge; 

(b) December I to June 5 with dip and bow nets in 
Contentnea Creek below US 301 bridge and in 



986 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



Toisnot Swamp downstream from the Lake 

Toisnot Dam; 
(c) January 1 to March 1 with gill nets in Silver 

Lake; 
(96) Yadkin: July 1 to June 30 with gigs in all public 
waters, and with traps in the main stem of Yadkin 
River. 

Authority G.S. 113-134: 113-276; 113-292. 

SECTION .0500 - PRIMARY NURSERY AREAS 

.0503 DESCRIPTIVE BOUNDARIES 

The following waters have been designated as primary nursery 
areas: 
(1) North River: 

(a) Broad Creek - Camden County - Entire stream; 

(b) Deep Creek - Currituck County - Entire stream; 

(c) Lutz Creek - Currituck County - Entire stream. 

(2) Alligator River: 

(a) East Lake - Dare County - Inland waters 
portion; 

(b) Little Alligator River - Tyrrell County - Entire 
stream. 

(3) Currituck Sound: 

(a) Martin Point Creek - Dare County - Entire 
stream (Jean Guite Creek); 

(b) Tull Creek and Bay - Currituck County - Tull 
Bay to mouth of Northwest River; Tull Creek 
from mouth upstream to SR 1222 bridge. 

(4) Pamlico River: 

(a) Duck Creek - Beaufort County - Entire stream; 

(b) Bath Creek - Beaufort County - Entire stream; 

(c) Mixons Creek - Beaufort County - Entire 
stream; 

(d) Porter Creek - Beaufort County - Entire stream; 

(e) Tooleys Creek - Beaufort County - Entire 
stream; 

(f) Jacobs Creek - Beaufort County - Entire stream; 

(g) Jacks Creek - Beaufort County - Entire stream; 
(h) Bond Creek - Beaufort County - Entire stream; 
(i) Muddy Creek - Beaufort County - Entire 

stream; 
(j) Strawhorn Creek - Beaufort County - Entire 

stream; 
(k) South Prong Wright Creek - Beaufort County 

- Entire stream; 
(1) Jordan Creek - Beaufort County - Entire stream. 

(5) Neuse River: 

( a ) Slocum Creek - Craven County - Entire stream; 

(b) Hancock Creek - Craven County - Entire 
stream. 

(6) New River: 

(a) French Creek - Onslow County - Entire stream; 

(b) New River - Onslow County - US Highway 1 7 
bridge to point 0.75 miles upstream. 



(7) Roanoke River: Halifax and Northampton 
counties - US 258 bridge to Roanoke Rapids dam. 

(8) Tar-Pamlico River: Nash. Edgecombe. Pitt and 
Beaufort counties ; N&S railroad at Washington 
upstream to Rocky Mount Mills Dam. 

(9) Neuse River: Wake. Johnston. Wayne. Lenoir. Pitt 
and Craven counties ; Pitchkeltle Creek upstream to 
Milburnie Dam. 

(10) Cape Fear River: Chatham. Lee, Harnett. 
Cumberland and Bladen counties ; Lock and Dam 
No. 1 upstream to Buckhorn Dam. 



Authority G.S. 113-132: 113-134. 

SUBCHAPTER lOD - GAME LANDS REGULATIONS 

SECTION .0100 - GAME LANDS REGULATIONS 

.0102 GENERAL REGULATIONS REGARDING 
USE 

(a) Trespass. Entry on game lands for purposes other than 
hunting, trapping or fishing shall be as authorized by the 
landowner and there shall be no removal of any plants or parts 
thereof, or other materials, without the written authorization of 
the landowner. Travel is restricted, except by authorized 
personnel, to direct access from SR 2074 to the established 
waterfowl viewing stands on Cowan's Ford Waterfowl Refuge. 
The Wildlife Resources Commission may designate areas on 
game lands as either an Archery Zone, Safety Zone Safety 
Zone, Restricted Firearms Zone, or Restricted Zone. 

( 1 ) Archery Zone. On portions of game lands posted as 
"Archery Zones" hunting is limited to bow and arrow 
hunting only. 

(2) Safety Zone. On portions of game lands posted as 
"Safety Zones" hunting is prohibited. No person shall 
hunt or discharge a tlrearm or bow and arrow within, 
into, or across a posted safety zone on any game land. 

(3) Restricted Firearms Zone. On portions of game 
lands posted as "Restricted Firearms Zones" the 
use of centerfire rifles is prohibited. 

(4) Restricted Zone. Portions of game lands posted as 
"Restricted Zones" are closed to all use by the general 
public, and entry upon such an area for any purpose is 
prohibited without first having obtained specific 
written approval of such entry or use from an 
authorized agent of the Wildlife Resources 
Commission. 

(5) Establishment of A r ch e r y Archery, Restricted 
Firearms, and Restricted Zones. The Commission 
shall conduct a public input meeting in the area where 
the game land is located before establishing any 
a r chery archery, restricted firearms or restricted zone. 
After the input meeting the public comments shall be 
presented to an official Commission meeting for final 
determination. 

(b) Littering. No person shall deposit any litter, trash, 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



987 



PROPOSED RULES 



garbage, or other refuse at any place on any game land except in 
receptacles provided for disposal of such refuse at designated 
camping and target-shooting areas. No garbage dumps or 
sanitary landfills shall be established on any game land by any 
person, firm, corporation, county or municipality, except as 
permitted by the landowner. 

(c) Possession of Hunting Devices. It is unlawful to possess 
a firearm or bow and arrow on a game land at any time except 
during the open hunting seasons or hunting days for game birds 
or game animals, other than fox, thereon unless said device is 
cased or not immediately available for use, provided that such 
devices may be possessed and used by persons participating in 
field trials on field trial areas and on target shooting areas 
designated by the landowner, and possessed in designated 
camping areas for defense of persons and property; and provided 
further that .22 caliber pistols with barrels not greater than seven 
and one-half inches in length and shooting only short, long, or 
long rifie ammunition may be carried as side arms on game 
lands at any time other than by hunters during the special bow 
and arrow and muzzle-loading firearms deer hunting seasons 
and by individuals training dogs during closed season without 
field trial authorization. This Rule shall not prevent possession 
or use of a bow and arrow as a licensed special fishing device in 
those waters where such use is authorized. During the closed 
firearms seasons on big game (deer, bear, boar, wild turkey), no 
person shall possess a shotgun shell containing larger than No. 
4 shot or any rifle or pistol larger than a .22 caliber rimfire while 
on a game land, except that shotgun shells containing any size 
steel or non-toxic shot may be used while waterfowl hunting. 
Furthermore, only shotguns with any size shot may be possessed 
during the big game season for turkey. No person shall hunt 
with or have in possession any shotgun shell containing lead or 
toxic shot while hunting on any posted waterfowl impoundment 
on any game land, or while hunting waterfowl on Butner-Falls 
of Neuse Game Land or New Hope Game Land, except shotgun 
shells containing lead buckshot may be used while deer hunting. 

(d) Game Lands License: Hunting and Trapping 

(1) Requirement. Except as provided in Subparagraph 
(2) of this Paragraph, any person entering upon any 
game land for the purpose of hunting, trapping, or 
participating in dog training or field trial activities 
shall have in his possession a game lands license in 
addition to the appropriate hunting or trapping 
licenses. 

(2) Exceptions 

(A) A person under 16 years of age may hunt on 
game lands on the license of his parent or legal 
guardian. 

(B) The resident and nonresident sportsman's 
licenses include game lands use privileges. 

(C) Judges and nonresidents participating in field 
trials under the circumstances set forth in 
Paragraph (e) of this Rule may do so without 
the game lands license. 

(D) On the game lands described in Rule 
.0003(e)(2) .0103(e)(2) of this Subchapter 
Section the game lands license is required only 



for hunting doves; all other activities are 
subject to the control of the landowners. 
(e) Field Trials and Training Dogs. A person serving as 
judge of a field trial which, pursuant to a written request from 
the sponsoring organization, has been offi.cially authorized in 
writing and scheduled for occurrence on a game land by an 
authorized representative of the Wildlife Resources 
Commission, and any nonresident participating therein may do 
so without procuring a game lands license, provided such 
nonresident has in his possession a valid hunting license issued 
by the state of his residence. Any individual or organization 
sponsoring a field trial on the Sandhills Field Trial grounds or 
the Laurinburg Fox Trial facility shall file with the commission's 
agent an application to use the area and facility accompanied by 
the facility use fee computed at the rate of one hundred dollars 
($1 00.00) for each scheduled day of the trial. The total facility 
use fee shall cover the period from 12:00 noon of the day 
preceding the firstscheduledday of the trial to 10:00 a.m. of the 
day following the last scheduled day of the trial. The facility use 
fee shall be paid for all intermediate days on which for any 
reason trials are not run but the building or facilities are used or 
occupied. A fee of twenty-five dollars ($25.00) per day shall be 
charged to sporting, educational, or scouting groups for 
scheduled events utilizing the club house only. No person or 
group of persons or any other entity shall enter or use in any 
manner any of the physical facilities located on the Laurinburg 
Fox Trial or the Sandhills Field Trial grounds without first 
having obtained specific written approval of such entry or use 
from an authorized agent of the Wildlife Resources 
Commission, and no such entry or use of any such facility shall 
exceed the scope of or continue beyond the specific approval so 
obtained. The Sandhills Field Trial facilities shall be used only 
for field trials scheduled with the approval of the Wildlife 
Resources Commission. No more than 16 days of field trials 
may be scheduled for occurrence on the Sandhills facilities 
during any calendar month, and no more than four days may be 
scheduled during any calendar week; provided, that a field trial 
requiring more than four days may be scheduled during one 
week upon reduction of the maximum number of days allowable 
during some other week so that the monthly maximum of 16 
days is not exceeded. Before October 1 of each year, the North 
Carolina Field Trial Association or other organization desiring 
use of the Sandhills facilities between October 22 and November 
18 and between December 3 and March 3\ shall submit its 
proposed schedule of such use to the Wildlife Resources 
Commission for its consideration and approval. The use of the 
Sandhills Field Trial facilities at any time by individuals for 
training dogs is prohibited; elsewhere on the Sandhills Game 
Lands dogs may be trained only on Mondays, Wednesdays and 
Saturdays from October I through April 1. Dogs may not be 
trained or permitted to run unleashed from April 1 through 
August 15 on any game land located west of 1-95, except when 
participating in field trials sanctioned by the Wildlife Resources 
Commission. Additionally, on game lands located west of 1-95 
where special hunts are scheduled for sportsmen participating in 
the Disabled Sportsman Program, dogs may not be trained or 
allowed to run unleashed during legal big game hunting hours 



988 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



on the dates of the special hunts. 

(0 Trapping. Subject to the restrictions contained in 15A 
NCAC lOB .0110, .0.^02 and .0303, trapping of furbearing 
animals is permitted on game lands during the applicable open 
seasons, except that trapping is prohibited: 

( 1 ) on the field trial course of the Sandhills Game Land; 

(2) on the Harmon Den and Sherwood bear sanctuaries in 
Haywood County; 

(3) in posted "safety zones" located on any game land; 

(4) by the use of multiple sets (with anchors less than 15 
feet apart) or bait on the National Forest Lands 
bounded by the Blue Ridge Parkway on the south, US 
276 on the north and east, and NC 215 on the west; 

(5) on Cowans Ford Waterfowl Refuge in Gaston, 
Lincoln and Mecklenburg Counties; 

(6) on the Hunting Creek Swamp Waterfowl Refuge; 

(7) on the John's River Waterfowl Refuge in Burke 
County; 

(8) on the Dupont State Forest Game Lands. 

On those areas of state-owned land known collectively as the 
Roanoke River Wetlands controlled trapping is allowed under a 
permit system. 

(g) Use of Weapons. In addition to zone restrictions 
described in Paragraph (a) No no person shall hunt or discharge 
a firearm or bow and arrow from a vehicle, or within 260 150 
yards of any Game Lands building or designated Game Lands 
camping area, or within, into, o r across a posted "safety zone" on 
any g ame la n d, within 150 yards of any residence located on or 
adjacent to game lands. No person s h all hunt with or dischal ^ ge 
a fireai ^ m w i thin, into, o r ac r oss a posted " r est r icted zone" on an y 
gam e la n d. 

(h) Vehicular Traffic. No person shall drive a motorized 
vehicle on any game land except on those roads constructed, 
maintained and opened for vehicular travel and those trails 
posted for vehicular travel, unless such person: 

( 1 ) is a participant in scheduled bird dog field trials held 
on the Sandhills Game Land; or 

(2) holds a Disabled Access Program Permit as described 
in (n) below and is abiding by the rules described in 
that paragraph. 

(i) Camping. No person shall camp on any game land except 
on an area designated by the landowner for camping. Camping 
and associated equipment in designated Hunter Camping Areas 
at Butner-Falls of the Neuse, Caswell, and Sandhills Game 
Lands is limited to Sept. 1- Feb. 29 and Apr. 7 - May 14. 

(j) Swimming. Swimming is prohibited in the lakes located 
on the Sandhills Game Land. 

(k) Disabled Sportsman Program. In order to qualify for 
special hunts for disabled sportsmen listed in 15A NCAC lOD 
t0603 .0103 an individual shall have in their possession a 
Disabled Sportsman permit issued by the Commission. In order 
to qualify for the permit, the applicant shall provide medical 
certification of one or more of the following disabilities: 

( 1 ) amputation of one or more limbs; 

(2) paralysis of one or more limbs; 

(3) dysfunction of one or more limbs rendering the 



person unable to perform the task of grasping and 
lifting with the hands and arms or unable to walk 
without mechanical assistance, other than a cane; 

(4) disease or injury or defect confining the person to a 
wheelchair, walker, or crutches; or 

(5) legal deafness, meaning the inability to hear or 
understand oral communications with or without 
assistance of amplification devices. 

Participants in the program, except those qualifying by deafness, 
may operate vehicles on ungated or open-gated roads normally 
closed to vehicular traffic on Game Lands owned by the Wildlife 
Resources Commission. Each program participant may be 
accompanied by one able-bodied companion provided such 
companion has in his possession the companion permit issued 
with the Disabled Sportsman permit. 

(1) Release of Animals and Fish. It is unlawful to relea.se pen- 
raised animals or birds, wild animals or birds, or hatchery-raised 
fish on game lands without prior written authorization. Also, it 
is unlawful to move wild fish from one stream to another on 
game lands without prior written authorization. 

(m) Non-Highway Licensed Vehicles. It is unlawful to 
operate motorized motorized, wheeled, vehicles not licensed for 
highway use f r om May 1 5 through August 3 1 on all state-owned 
Game Lands. — Such vehicles may be operated September 1 
th r ough May 14 only on those roads constructed, maintained, 
and open for vehicular t r avel and those trails posted for 
vehicular use. All operato r s of such vehicles shall have, in thei r 
p ossession, a valid Game Lands Use license, on Game Lands 
except for designated areas on National Forests. People who 
have obtained a Disabled Access Program permit are exempt 
from this rule but must comply with the terms of their permit. 

(n) Disabled Access Program. Permits issued under this 
program shall be based upon competent medical evidence 
submitted by the person verifying that a handicap exists that 
limits physical mobility to the extent that normal ufilization of 
the game lands is not possible without vehicular assistance. 
Persons meeting this requirement may operate electric wheel 
chairs, all terrain vehicles, and other passenger vehicles on 
ungated or open-gated roads otherwise closed to vehicular traffic 
on game lands owned by the Wildlife Resources Commission 
and on game lands whose owners have agreed to such use. 
Those game lands where this special rule applies shall be 
designated in the game land rules and map book. This special 
access rule for disabled sportsmen does not permit vehicular 
access on fields, openings, roads, paths, or trails planted to 
wildlife food or cover. One able-bodied companion, who is 
identified by a special card issued to each qualified disabled 
person, may accompany a disabled person to provide assistance, 
provided the companion is at all times in visual or verbal contact 
with the disabled person. The companion may participate in all 
lawful activities while assisting a disabled person, provided 
license requirements are met. Any vehicle used by a qualified 
disabled person for access to game lands under this provision 
shall prominently display the vehicular access permit issued by 
the Wildlife Resources Commission in the passenger area of the 
vehicle. It shall be unlawful for anyone other than those holding 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



989 



PROPOSED RULES 



a Disabled Access Permit to hunt, during waterfowl season, 
within 1 00 yards of a waterfowl blind designated by the Wildlife 
Resources Commission as a Disabled Sportsman's hunting 
blind. 



Authority G.S. 113-134: 113-264; 113-270.3; 
1 13-291.5; 113-305; 113-306. 



113-291.2; 



.0103 HUNTING ON GAME LANDS 

(a) Safety Requirements. No person while hunting on any 
designated game land shall be under the influence of alcohol or 
any narcotic drug, or fail to comply with special restrictions 
enacted by the National Park Service regarding the use of the 
Blue Ridge Parkway where it adjoins game lands listed in this 
Rule. 

(b) Traffic Requirements. No person shall park a vehicle on 
game lands in such a manner as to block traffic, gates or 
otherwise prevent vehicles from using any roadway. 

(c) Tree Stands. It is unlawful to erect or to occupy, for the 
purpose of hunting, any tree stand or platform attached by nails, 
screws, bolts or wire to a tree on any game land designated 
herein. This prohibition shall not apply to lag-screw steps or 
portable stands that are removed after use with no metal left 
remaining in or attached to the tree. 

(d) Time and Manner of Taking. Except where closed to 
hunting or limited to specific dates by this Chapter, hunting on 
game lands is permitted during the open season for the game or 
furbearing species being hunted. On managed waterfowl 
impoundments, hunters shall not enter the posted impoundment 
areas earlier than 4:00 a.m. on the permitted hunting dates, and 
hunting is prohibited after 1:00 p.m. on such hunting dates; 
decoys shall not be set out prior to 4:00 a.m. and must be 
removed by 3:00 p.m. each day. No person shall operate any 
vessel or vehicle powered by an internal combustion engine on 
a managed waterfowl impoundment. No person shall attempt to 
obscure the sex or age of any bird or animal taken by severing 
the head or any other part thereof, or possess any bird or animal 
which has been so mutilated. No person shall place, or cause to 
be placed on any game land, salt, grain, fruit, or other foods 
without prior written authorization of the commission or its 
agent. A decision to grant or deny authorization shall be made 
based on the best management practices for the wildlife species 
in question. No person shall take or attempt to take any game 
birds or game animals attracted to such foods. No live wild 
animals or wild birds shall be removed from any game land. 

(e) Definitions: 

( 1 ) For purposes of this Section "Eastern" season refers 
to seasons set for those counties or parts of counties 
listed in 15A NCAC lOB .0203(b)(1)(A); "Central" 
season refers to seasons set for those counties or parts 
ofcounties listed in I5ANCAC 1 OB .0203(b)(1)(D); 
"Northwestern" season refers to seasons set for those 
counties or parts ofcounties listed in 15ANCAC lOB 
.0203( b)( 1 )(B ); "Western" season refers to seasons set 
for those counties or parts ofcounties listed in 15A 
NCAC lOB .0203(b)(1)(C). 

(2) For purposes of this Section, "Dove Only Area" refers 



to a Game Land on which doves may be taken and 
dove hunting is limited to Mondays, Wednesdays, 
Saturdays and to Thanksgiving, Christmas and New 
Year's Days within the federally-announced season. 

(3) For purposes of this Section, "Three Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons and hunting is 
limited to Mondays, Wednesdays, Saturdays and 
Thanksgiving, Christmas and New Year's Days. 
These "open days" also apply to either-sex hunting 
seasons listed under each game land. Raccoon and 
opossum hunting may continue until 7:00 a.m. on 
Tuesdays, until 7:00 a.m. on Thursdays, and until 
midnight on Saturdays. 

(4) For purposes of this Section, "Six Days per Week 
Area" refers to a Game Land on which any game may 
be taken during the open seasons, except that: 

(A) Bears shall not be taken on lands designated 
and posted as bear sanctuaries; 

(B) Wild boar shall not be taken with the use of 
dogs on such bear sanctuaries, and wild boar 
may be hunted only during the bow and arrow 
seasons, the muzzle-loading deer season and 
the regular gun season on male deer on bear 
sanctuaries; 

(C) On game lands open to deer hunting located in 
or west of the counties of Rockingham, 
Guilford, Randolph, Montgomery and Anson, 
the following rules apply to the use of dogs 
during the regular season for hunting deer with 
guns: 

(i) Except for the counties of Cherokee, 
Clay, Graham, Jackson, Macon, 
Madison, Polk, and Swain, game birds 
may be hunted with dogs. 

(ii) In the counties of Cherokee, Clay, 
Graham, Jackson, Macon, Madison, 
Polk, and Swain, small game in season 
may be hunted with dogs on all game 
lands except on bear sanctuaries. 

(D) On bear sanctuaries in and west of Madison, 
Buncombe, Henderson and Polk counties dogs 
shall not be trained or allowed to run unleashed 
between March 1 and the Monday on or 
nearest October 15; 

(f) Game Lands Seasons and Other Restrictions: 
( I ) Alcoa Game Land in Davidson, Davie, Montgomery, 
Rowan and Stanly counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Season in that portion in Montgomery county 
and deer of either sex may be taken all the 
open days of the applicable Deer With Visible 
Antlers Season in those portions in Davie 
Davidson, Rowan and Stanly counties. 



990 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(2) Angola Bay Game Land in Duplin and Pender 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(3) Anson Game Land in Anson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(4) Bachlelor Bay Game Land in Bertie and Washington 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(5) Bertie County Game Land in Bertie County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

t^ Bladen County Game Land in Bladen County 
tAi S i x Days pe r Week Area 
(fi) Dee r of either sex may be taken all the open 

days of the applicable Deer With Visible 

Antlers Season. 
f€) A special pe r mit is r equired for hu n ting on 

the Suggs Mill Pond po r tion of the Bladen 

County Game Lands. 

(6) Bladen Lakes State Forest Game Land in Bladen 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 
Deer of either sex may also be taken the 
Saturday preceding Eastern bow season with 
bow and arrow and the Friday preceding the 
Eastern muzzle-loading season with any legal 
weapon (with weapons exceptions described in 
this Paragraph) by participants in the Disabled 
Sportsman Program. 

(C) Handguns shall not be carried and, except for 
muzzle-loaders, rifles larger than .22 caliber 
rimfire shall not be used or possessed. 

(D) On the Breece Tract and the Singletary Tract 
deer and bear may be taken only by still 
hunting. 

(E) Wild turkey hunting is by permit only. 

(7) Brushy Mountains Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(8) BuUard and Branch Hunting Preserve Game Lands in 



Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(9) Butner - Falls of Neuse Game Land in Durham, 
Granville and Wake counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 
Waterfowl shall not be taken after 1 :00 p.m. 
On the posted waterfowl impoundments a 
special permit is required for all waterfowl 
hunting after November 1. 

(D) Horseback riding, including all equine species, 
is prohibited. 

(E) Target shooting is prohibited 

(F) Wild turkey hunting is by permit only. 

(10) Cape Fear Game Land in Pender County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) Turkey Hunting is by permit only on that 
portion known as the Roan Island Tract. 

(11) Caswell Game Land in Caswell County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Deer of either sex may also be 
taken the Friday preceding the Central muzzle- 
loading season by participants in the Disabled 
Sportsman Program. 

(C) Horseback riding is allowed only during June, 
July, and August and on Sundays during the 
remainder of the year except during open 
turkey and deer seasons. Horseback riding is 
allowed only on roads opened to vehicular 
traffic. Participants must obtain a game lands 
license prior to engaging in such activity. 

(12) Caswell Farm Game Land in Lenoir County 
(A) Dove-Only Area 

(13) Catawba Game Land in Catawba and Iredell counties 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

(C) Deer may be taken with bow and arrow only 
from the tract known as Molly's Backbone. 

(14) Chatham Game Land in Chatham County and Harnett 
counties 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



991 



PROPOSED RULES 



(A) Six Days per Week Area 

(B) Deer of either sex may he taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(15) Cherokee Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(16) Cherry Farm Game Land in Wayne County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) The use of centerfire rifles and handguns is 
prohibited. 

(17) Chowan Game Land in Chowan County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. In addition, one antlerless 
deer may be taken anytime during the Deer 
with Visible Antlers season. 

(18) Chowan Swamp Game Land in Gates County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(19) Columbus County Game Land in Columbus County. 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(20) Croatan Game Land in Carteret, Craven and Jones 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Mondays, 
Wednesdays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

(21) Currituck Banks Game Land in Currituck County 

(A) Six Days per Week Area 

(B) Permanent waterfowl blinds in Currituck 
Sound adjacent to these game lands shall be 
hunted by permit only alter November I . 

(C) Licensed hunting guides may accompany the 
permitted individual or party provided the 
guides do not possess or use a firearm. 

(D) The boundary of the Game Land shall extend 



5 yards from the edge of the marsh or 
shoreline. 

(22) Dare Game Land in Dare County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) No hunting on posted parts of bombing range. 

(D) The use and training of dogs is prohibited from 
March 1 through June 30. 

(23) Dupont State Forest Game Lands in Henderson and 
Transylvania counties 

(A) Hunting is by Permit only. 

(B) The training and use of dogs for hunting except 
during scheduled small game permit hunts for 
squirrel, grouse, rabbit, or quail is prohibited. 

(C) Participants of the Disabled Sportsman 
Program may also take deer of either sex 
with any legal weapon on the Saturday 
prior to the first segment of the Western 
bow and arrow season. 

(24) DysartsvilleGame Land in McDowell and Rutherford 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(25) Elk Knob Game Land in Ashe and Watauga counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(26) Gardner- Webb Game Land in Cleveland County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(27) Goose Creek Game Land in Beaufort and Pamlico 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken al] the open 
days the fi r st six open days and the last six 
o p en day s of the applicable Deer With Visible 
Antlers Season. 

(C) On posted waterfowl impoundments waterfowl 
may be taken only on Mondays, Wednesdays, 
Saturdays; on Thanksgiving, Christmas and 
New Year's Days; and on the opening and 
closing days of the applicable waterfowl 
seasons. After November I , on the Pamlico 
Point, Campbell Creek, Hunting Creek and 
Spring Creek impoundments, a special permit 
is required for hunting on opening and closing 
days of the duck seasons, Saturdays of the 
duck seasons, and on Thanksgiving and New 
Year's day. 



992 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(28) Green River Game Land in Henderson, Polk and 
Rutherford counties (34) 

(A) Six Days per Week Aiea 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season in that portion in Rutherford 
County; and deer of either sex may he taken 

the last open day of the applicable Deer With (35) 

Visible Antlers Season in that portion in Polk 
and Henderson counties. 

(C) Horseback riding is prohibited except on 
designated trails May 16 through August 31 

and ail horseback riding is prohibited from (36) 

September \_ through May 15. This Rule 
includes all equine species. 

(29) Green Swamp Game Land in Brunswick County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(30) Gull Rock Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) On the posted waterfowl impoundments of 
Gull Rock Game Land hunting of any species 

of wildlife is limited to Mondays, Wednesdays, (37) 

Saturdays; Thanksgiving, Christmas, and New 
Year'sDays; and the opening and closing days 
of the applicable waterfowl seasons. 

(31) Hickorynut Mountain Game Land in McDowell 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(32) Hofmann Forest Game Land in Jones and Onslow (38) 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. (39) 

(33) Holly Shelter Game Land in Pender County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 

Antlers Season. Deerofeithersexmay alsobe (40) 

taken the Friday preceding the Eastern muzzle- 
loading season with any legal weapon and the 
Saturday preceding Eastern bow season with 
bow and arrow by participants in the Disabled 
Sportsman Program (40) 

(C) Waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons regardless of the day of the week on 



(B) 



(C) 



which they occur. 
Huntsville Community Farms Game Land in Yadkin 
County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

Hyco Game land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Jordan Game Land in Chatham, Durham, Orange and 

Wake counties 

(A) Six Days per Week Area 

Deer of either sex may be taken the first six 

open days and the last six open days of the 

applicable Deer With Visible Antlers Season. 

Waterfowl may be taken only on Mondays, 

Wednesdays, Saturdays; on Thanksgiving, 

Christmas and New Year's Days; and on the 

opening and closing days of the applicable 

waterfowl seasons. 

Horseback riding, including all equine species, 

is prohibited. 

Target shooting is prohibited. 

Wild turkey hunting is by permit only. 

Lantern Acres Game Land in Tyrrell and Washington 

counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may 
be taken anytime during the Deer With 
Visible Antlers season. 

Lee Game Land in Lee County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Linwood Game Land in Davidson County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

Moo r e Game Land in Moore County 

(A) Six Days per Week Area 

(&) Deer of either sex may be taken the first six 
open days and the last six o p e n days of th e 
applicable Deer W i th Visible Antl er s Season. 

Nantahala Game Land in Cherokee, Clay. Graham, 

Jackson, Macon, Swain and Transylvania counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 



(D) 

(E) 
(F) 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



993 



PROPOSED RULES 



day of the applicable Deer With Visible 
Antlers Season in that portion located in 
Transylvania County. 

(C) Raccoon and opossum may be hunted only 
from sunset Friday until sunrise on Saturday 
and from sunset until 12:00 midnight on 
Saturday on Fires Creek Bear Sanctuary in 
Clay County and in that part of Cherokee 
County north of US 64 and NC 294, east of 
Persimmon Creek and Hiwassee Lake, south of 
Hiwassee Lake and west of Nottely River; in 
the same part of Cherokee County dog training 
is prohibited from March I to the Monday on 
or nearest October 1 5. 

(B) It is unlawful to t r ain dogs o r allow dogs to r u n 
unleashed on any game land i n G r aham Cou n ty 
betwe e n March 1 and the Monday on or 
n ea r est Octobe r 15. 

(4 1 ) Neuse River Game Land in Craven County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(42) New Lake Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(43) North River Game Land in Currituck County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of the 
applicable Deer With Visible Antlers Season. 
In addition, one antlerless deer may be 
taken anytime during the Deer With Visible 
Antlers season. 

(C) The boundary of the Game Land shall extend 
5 yards from the edge of the marsh or 
shoreline. 

(44) Northwest River Marsh Game Land in Currituck 
County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may 
be taken anytime during the Deer With 
Visible Antlers season. 

(C) The boundary of the Game Land shall extend 
5 yards from the edge of the marsh or 
shoreline. 

(45) Pee Dee River Game Land in Anson, Montgomery, 
Richmond and Stanly counties 

(A) Six Days per Week Area 



(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Use of centerfire rifles prohibited in that 
portion in Anson and Richmond counties 
North of US-74. 

(46) Perkins Game Land in Davie County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. 

(47) Person Game Land in Person County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Thursdays and Saturdays, Christmas and New 
Year's Days, and on the opening and closing 
days of the applicable waterfowl seasons. 

(48) Pisgah Game Land in Avery, Buncombe, Burke, 
Caldwell, Haywood, Henderson, Madison, 
McDowell, Mitchell, Transylvania, Watauga and 
Yancey counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season except on that portion of Avery 
County north of the Blue Ridge Parkway iii 
Avery and Yancey counties and that portion in 
Haywood County encompassed by US 276 on 
the north, US 74 on the west, and the Blue 
Ridge Parkway on the south and east. 

(C) Harmon Den and Sherwood Bear Sanctuaries 
in Haywood County are closed to hunting 
raccoon, opossum and wildcat. Training 
raccoon and opossum dogs is prohibited from 
March 1 to the Monday on or nearest October 
15 in that part of Madison County north of the 
French Broad River, south of US 25-70 and 
west of SR 1319. 

(49) Pungo River Game Land in Hyde County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(50) Roanoke River Wetlands in Bertie, Halifax and 
Martin counties 

(A) Hunting is by Permit only. Vehicles are 
prohibited on roads or trails except those 
operated on official Commission business or 
by permit holders. 

(5 1 ) Robeson Game Land in Robeson County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 



994 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(B) 



(C) 



(52) Sampson Game Land in Sampson County 

(A) Three Days per Week Area (55) 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(53) Sandhills Game Land in Moore, Richmond and 
Scotland counties 

(A) Three Days per Week Area 

The Deer With Visible Antlers season for deer 
consists of the open hunting dates from the 
second Monday before Thanksgiving through 
the third Saturday after Thanksgiving except (55) 

on the field trial grounds where the gun season 
is from the second Monday before 
Thanksgiving through the Saturday following 
Thanksgiving. Deer may be taken with bow 
and arrow on all open hunting dates during the 
bow and arrow season, as well as during the 
regular gun season. Deer may be taken with 
muzzle-loading firearms on Monday, 
Wednesday and Saturday of the second week 
before Thanksgiving week, and during the 
Deer With Visible Antlers season. 
Gun either-sex deer hunting is by p e r mit only 
the Tliursday and Friday before Tlianksgiving 
Week. Deer of either sex may be taken during (57) 

the first three open days of the Deer With 
Visible Antlers season. For participants in the 
Disabled Sportsman Program, either-sex deer 
hunting with any legal weapon is permitted on 
all areas the Thursday and Friday prior to the 
muzzle-loading season described in the 
preceding paragraph. Except for the deer 
seasons indicated in the preceding paragraph 
and the managed eithe r -sex pe r mit Disabled 
Sportsman Program hunts, the field trial 
grounds are closed to all hunting during the 
period October 22 to March 3 1 . 
In addition to the regular hunting days, 
waterfowl may be taken on the opening and 
closing days of the applicable waterfowl 
seasons 

Wild turkey hunting is by permit only. 
Dove hunting on the field trial grounds will be 
prohibited from the second Sunday in 
September through the remainder of the 
hunting season. 

No all ter r ain vehicles shall be used on the J. 
Robert Go r don Field T r ial Area except by /^q^ 

iring dee r and dove open 
NCAC lOD 
.0102(ni). 

(54) Sauratown Plantation Game Land in Stokes County 

(A) Three Days per Week Area 

(B) Deer of either sex may be taken tne last open 
day of the applicable Deer With Visible 



(D) 



(E) 

(F) 



tG) 



(58) 



(59) 



Antlers Season. 
Scuppernong Game Land in Tyrrell and 
Washington counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days, open days the week of 
Thanksgiving, and the last six open days of 
the applicable Deer With Visible Antlers 
Season. In addition, one antlerless deer may 
be taken anytime during the Deer With 
Visible Antlers season. 

Shearon Harris Game Land in Chatham and Wake 
counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last six open days of the 
applicable Deer With Visible Antlers Season. 

(C) Waterfowl may be taken only on Tuesdays, 
Fridays, Saturdays; on Thanksgiving, 
Christmas and New Year's Days; and on the 
opening and closing days of the applicable 
waterfowl seasons. 

(D) The use or construction of permanent 
hunting blinds is prohibited. 

(E) Wild Turkey hunting is by permit only. 
South Mountains Game Land in Burke, Cleveland, 
McDowell and Rutherford counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Horseback riding is prohibited except on 
designated trails May 16 through August 31 
and all horseback riding is prohibited from 
September 1 through May 15. This Rule 
includes all equine species. 

Suggs Mill Pond Game Land in Bladen County; 

Hunting is by Permit only. 

Sutton Lake Game Land in New Hanoyer County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Horseback riding is prohibited except on 
designated trails May 16 through August 31 
and al] horseback riding is prohibited from 
September 1 through May 15. This Rule 
includes all equine species. 

Three Top Mountain Game Land in Ashe County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(C) Horseback riding is prohibited except on 
designated trails May 16 through August 31 
and all horseback riding is prohibited from 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



995 



PROPOSED RULES 



Septemher i through May 15. This Rule 
includes all equine species. 

(61) Thurmond Chatham Game Land in Wilkes County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program Dee r may also take either- 
sex deer with bow and arrow on the Saturday 
prior to Northwestern bow and arrow season. 

(C) H or se b ack riding is only allowed du r ing June. 
July, and August and on Sundays during the 
r emainder of the yea r exce p t during open 
turkey and dee r seaso n s. H or seback r id i ng is 
allowed only on roads opened to vehicula r 
tr affic. Horseback riding is prohibited except 
on designated trails May 1 6 through August 3 1 
and all horseback riding is prohibited from 
September 1 through May 15. TTiis Rule 
includes all equine species. Participants must 
obtain a game lands license prior to horseback 
riding on this area. 

(62) Toxaway Game Land in Transylvania County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last open 
day of the applicable Deer With Visible 
Antlers Season. Participants of the Disabled 
Sportsman Program may also take deer of 
either sex with any legal weapon on the 
Saturday prior to the first segment of the 
Western bow and arrow season. 

(C) Horseback riding is prohibited except on 
designated trails May 16 through August 31 
and aU horseback riding is prohibited from 
September _[ through May 15. This Rule 
includes all equine species. 

(63 ) Uwharrie Game Land in Davidson, Montgomery and 
Randolph counties 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the first six 
open days and the last open six days of the 
applicable Deer With Visible Antlers Season. 

(64) Vance Game Land in Vance County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) The use of dogs, centerfire rifles and handguns 
for hunting deer is prohibited on the Nutbush 
Peninsula tract. 

(65) White Oak River Impoundment Game Land in 
Onslow County 

(A) TTiree Days per Week Area 

(B) Deer of either sex may be taken all the open 
days of the applicable Deer With Visible 
Antlers Season. 

(C) Waterfowl may be taken on the opening and 



closing days of the applicable waterfowl 
seasons regardless of the day of the week on 
which they occur. 
(66) Yadkin Game Land in Caldwell County 

(A) Six Days per Week Area 

(B) Deer of either sex may be taken the last six 
open days of the applicable Deer With Visible 
Antlers Season. 

(g) On permitted type hunts deer of either sex may be taken 
on the hunt dates indicated on the permit. Completed 
applications must be received by the Commission not later than 
the first day of September next preceding the dates of hunt. 
Permits shall be issued by random computer selection, shall be 
mailed to the permittees prior to the hunt, and shall be 
nontransferable. A hunter making a kill must tag th e dee r 
validate the kill and report the kill to a wildlife cooperator agent 
or by phone. 

(h) The following game lands and refuges shall be closed to 
all hunting except to those individuals who have obtained a valid 
and current permit from the Wildlife Resources Commission: 
Bertie, Halifax and Martin counties-Roanoke River 
Wetlands; 

Bertie County— Roanoke River National Wildlife 
Refuge. 

Bladen County— Suggs Mill Pond Game Lands 
Burke County— John's River Waterfowl Refuge 
Dare County-Dare Game Lands (Those parts of 
bombing range posted against hunting) 
Davie— Hunting Creek Swamp Waterfowl Refuge 
Gaston, Lincoln and Mecklenburg counties-Cowan's 
Ford Waterfowl Refuge. 

Henderson and Transylvania counties— Dupont State 
Forest Game Lands 

Authority G.S. 113-134; 113-264: 113-291.2; 113-291.5; 
113-305. 

.0104 FISHING ON GAME LANDS 

(a) Generally. Except as otherwise indicated herein, fishing 
on game lands which are open to fishing shall be in accordance 
with the statewide rules. All game lands are open to public 
fishing except restocked ponds when posted against fishing. 
Hunting Creek Swamp Waterfowl Refuge, Grogan Creek in 
Transylvania County, and in the case of private ponds where 
fishing may be prohibited by the owners thereof. No trotline or 
set-hook or any net, trap, gig, bow and arrow or other special 
fishing device of a type mentioned in I5A NCAC IOC .0403 
may be used in any of the impounded waters located on the 
Sandhills Game Land. 

(b) Designated Public Mountain Trout Waters 

( 1 ) Fishing Hours. It is unlawful to fish in designated 
public mountain trout waters on any game land from 
one-half hour after sunset to one-half hour before 
sunrise, except in Hatchery Supported Trout waters as 
stated in 15A NCAC IOC .0305(a), Delayed Harvest 
waters as stated in 15A NCAC IOC .0205(a)(5), 
game lands sections of the Nantahala River located 



996 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



downstream from the Swain County line, and in the 
sections of Green River in Folic County located on 
Green River Game Lands from Fish Stop Falls 
Access Area downstream Cove Creek downstream to 
Brights Creek. 

(2) Location. All waters located on the game lands listed 
in this Subparagraph are designated public mountain 
trout waters except Cherokee Lake, Grogan Creek, 
and Big Laurel Creek downstream from the US 25-70 
bridge to the French Broad River, Pigeon River 
downstream of Waterville Reservoir to Tennessee 
line, Nolichucky River, and Mill Ridge Pond and 
Cheoah River downstream of Santeetlah Reservoir. 

Dupont State Forest Game Lands in Henderson 

and Transylvania counties 

Three Top Mountain Game Land, Ashe County 

Nantahala National Forest Game Lands in the 

Counties of Cherokee, Clay , Graham, Jackson, 

Macon, Swain and Transylvania 

Pisgah National Forest Game Lands in the 

Counties of Avery, Buncombe, Burke, 

Caldwell, Haywood, Henderson, Madison, 

McDowell, Mitchell, Transylvania and Yancey 

Thurmond Chatham Game Land in Wilkes 

County 

Toxaway Game Land in Transylvania County 

(3) All designated public mountain trout waters located 
on the game lands listed in Subparagraph (b)(2) of 
this Rule are wild trout waters unless classified 
otherwise. [See 15ANCAC IOC .0205(a)(1)]. 

(c) Ponds. In all game lands ponds, it is unlawful to take 
channel, white or blue catfish (forked tail catfish) by means 
other than hook and line and the daily creel limit for forked tail 
catfish is six fish in aggregate. 

Authority G.S. 113-134: 113-264: 113-272: 113-292: 113-305. 

Notice is hereby given in accordance with G.S. 1506-21. 2 
that the North Carolina Wildlife Resources Commission 
intends to amend the rule cited as 15A NCAC 10F.0353. Notice 
of Rule-making Proceedings was published in the Register on 
July 15. 1999. 

Proposed Effective Date: July 1, 2000 

A Public Hearing will be conducted at 10:00 a.m. on January 
6, 2000 at the Archdale Building. Room 332. 512 N. Salisbuiy 
Street. Raleigh, NC 27603. 

Reason for Proposed Action: The Mountain Island Lake 
Marine Commission initiated the no-wake zones pursuant to 
G.S. 75A-I5. to protect public safety in the area by restricting 
vessel speed. The Wildlife Resources Commission may adopt 
this as a temporary rule pursuant to G.S. 150B-2l.l(al ) 



following the abbreviated notice as indicated in the Notice of 
Rule-making Proceedings or following the public hearing and 
public comment period as indicated in this notice. 

Comment Procedures: Interested persons may present their 
views either orally or in writing at the hearing. In addition, the 
record of hearing will he open for receipt of written comments 
through January 14. 2000. Such written comments must be 
delivered or mailed to the NC Wildlife Resources Commission, 
512 N. Salisbun- Street, Raleigh, NC 27604-1188. 



Fiscal Impact 
State Local 



Sub. None 



CHAPTER 10 - WILDLIFE RESOURCES AND WATER 
SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND WATER 
SAFETY 

SECTION .0300 - LOCAL WATER SAFETY 
REGULATIONS 

.0353 MOUNTAIN ISLAND LAKE: MECKLENBURG, 
GASTON AND LINCOLN COUNTIES 

(a) Regulated Area. This Rule applies to Mountain Island 
Lake which is located in Mecklenburg, Gaston and Lincoln 
counties, the cove of Mountai n Island Lake lying north of and 
adjacent to the Latta Plan t ation Park and adjacent to the 
Mecklenburg — County — Park — and — Duke — Pow er — Company 

(1) Latta Plantation Park - The cove lying north of and 
adjacent to the Latta Plantation Park and adjacent to 
the Mecklenburg County Park and Duke Power 
Company properties. 
Duck Cove - The waters of Duck Cove as delineated 



ill 



01 



by appropriate markers. Duck Cove is adjacent to 
Mecklenburg County 'sCowan'sFord Wildlife Refuge 
and west of the portion of Neck Road that runs 
through Cowan's Ford Wildlife Refuge. 
Nance Cove 

(A) The waters of the southern portion of Nance 
Cove extending north from the back of the 
cove, at or near Shuftlelown Landing, up the 
cove toward the main channel of Mountain 
Island Lake, extending to a point that is 
roughly even with the boundary line between 
Lots 166 and 167 in the Overlook subdivision, 
which lots are just north of the Overlook Swim 
& Tennis Club, and where the cove is 
approximately Three Hundred and Sixty-Eight 
feet wide. 

(B) The waters of the western arm or sub-cove of 
Nance Cove, which lies west of Shadow Cove 
Lane and the northern-nmst portion of Nance 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



997 



PROPOSED RULES 



Cove Road and east of Haymarket Road. 
(4) North Carolina Highway 16 Bridge - An area 
extending approximately 50 yards in a]] directions 
from the NC Highway 16 Bridge also known as the 
Rozelles Ferry Bridge. 

(b) Speed Limit. No person shall operate any motorboat or 
vessel at greater than no-wake speed within the regulated area 
described in Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. The Board of 
Comissioners of Mecklen b urg County Each of the boards of 
Commissioners of the above-named counties is designated a 
suitable agency for placement and maintenance of markers 
implementing this Rule. Rule for regulated areas within their 
territorial jurisdiction in accordance with the Uniform System. 

AiitlwrirxG.S. 75A-3: 75A-15. 



TITLE 16 - DEPARTMENT OF PUBLIC EDUCATION 

Notice is hereby given in accordance with G.S. ] 508-21. 2 
tliat the State Board of Education intends to adopt the rule 
cited as 16NCAC6G .0502; amend the rules cited as 16 NCAC 
6C .0102-.0103. .0202. .0207. .0301-.0309. .0311-.0313: 6E 
.0202; 6H.0103. .0106; and repeal the rules cited as 16 NCAC 
6C .0205-. 0206. Notice of Rule-making Proceedings was 
published in the Register on September 15. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted from 9:30 a.m. to 2:00 
p.m. on January 8, 2000 at the Education Building. Room 150, 
Raleigh, NC. 

Reason for Proposed Action: The State Board of Education 
proposes to rename to the credential it issues to authorize 
professional practice as "license" rather than "certificate." The 
Board also proposes to amend various rules in 16 NCAC 6C 
.0300 to comply with the provisions ofS.L. 1997-221, to clarify- 
in 16 NCAC 6E .0202 the academic requirements for middle 
school athletic participation, to define in 16 NCAC6G .0502 the 
functions of the Charter Schools Advisory Committee, and to 
amend rules in Subchapter 6H to be consistent with provisions 
of the federal Individuals with Disabilities Education Act. 

Comment Procedures: Written or oral comments may be 
presented at the hearing. Written comments may also be 
submitted to the rule-making coordinator by e-mail 
(hwilson@dpi. state. itc. us), by regular mail {301 N. Wilmington 
Street. Raleigh, NC 27601-2825), or by facsimile at (919) 715- 
0764, no later than Januan- 14, 2000. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 6 - ELEMENTARY AND SECONDARY 
EDUCATION 

SUBCHAPTER 6C - PERSONNEL 

SECTION .0100 - GENERAL PROVISIONS 

.0102 NATURE OF LICENSURE 

(a) The SBE exe r c i ses shall exercise its certification licensing 
authority through the department in two general areas: 

( 1 ) The SBE conside r s shall consider for approval the 
teacher education programs of IHEs which that 
belong to the SACS and which that meet the 
requirements of Rules .0202-.0206 Rule .0202 of this 
Subchapter. 

(2) The SBE awards certification shall award licenses to 
individuals who desire to obtain employment as a 
professional public school employee employees and 
who meet the requirements of Section .0300 of this 
Subchapter. 

(b) The SBE bases shall base its approval on the requirements 
which that are in effect at the time the IHE or the individual 
applies for approval. 

Authority N.C. Constitution, Article IX, Sec. 5. 

.0103 STATE BOARD OF EDUCATION ACTION 

(a) The SBE awards or de n ies shall award or deny approval 
to teacher education programs by the process described in 16 
NCAC 6C .0202. 

(b) The SBE acts shall act on personnel ce r tif i cat i o n license 
requests according to the process contained in 16 NCAC 6C 
.0301. 

Authority- G.S. 115C-284(c); II5C-296; 115C-315(d). 

SECTION .0200 - TEACHER EDUCATION 

.0202 INTERSCHOLASTIC ATHLETICS 

(a) Only students in grades 7-12 may participate in 
interscholastic athletic competition. In order to qualify for public 
school participation, a student must meet the following 
requirements: 

( 1 ) The student must meet the residence criteria of G.S. 
1 15C-366(a). The student may participate only at the 
school to which the student is assigned by the LEA, 
or, if over the age requirements, the school to which 
the student would be assigned at the next higher grade 
level. 

(2) The student must meet age requirements at each grade 
level to participate. The principal must have evidence 
of the legal birth date of the student. A student who is 
ineligible to participate at one grade level due to age 
is eligible to participate at the next higher grade level 
only. However, no student may participate at the high 
school level for a period lasting more than eight 



998 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



consecutive semesters, beginning with the student's 
first entry into grade nine or participation on a high 
school team, whichever occurs first. 

(A) A student is eligible to participate in high 
school athletic contests during a school year if 
the student does not reach the 1 9th birthday on 
or before October 16 of that school year. 

(B) A student shall not participate on a ninth grade 
junior high school team if the student becomes 
1 6 years of age on or before October 1 6 of that 
school year. 

(C) A student shall not participate on a seventh or 
eighth grade team if the student becomes 15 
years of age on or before October 16 of that 
school year. 

(3) In grades 9-12, the student must pass at least seventy- 
five percent (75%) of the maximum of possible 
courses each semester and meet promotion standards 
established by the LEA. In grades 7 and 8, the student 
must me e t stat e and local promotion standards and 
ma in tain p assing g r ades each semeste r , pass at least 
one less course than the number of required core 
courses each semester and meet promotion standards 
established by the LEA. Regardless of the school 
organization pattern, a student who is promoted from 
the eighth grade to the ninth grade automatically 
meets the courses passed requirement for the tlrst 
semester of the ninth grade. 

(4) The student must receive a medical examination each 
year (365 days) by a duly licensed physician, nurse 
practitioner, or physician assistant, subject to the 
provisions of G.S. 90-9, 90-18.1, and 90-18.2. 

(5) The student may not participate after any of the 
following: 

(A) graduation; 

(B) becoming eligible to graduate; 

(C) signing a professional athletic contract; 

(D) receiving remuneration as a participant in an 
athletic contest; or 

(E) participating on an all-star team or in an all-star 
game that is not sanctioned by the association 
of which the student's school is a member. The 
student is ineligible only for the specific sport 
involved. 

(b) Each principal of a school which participates in 
interscholastic athletics must certify a list of eligible students for 
each sport. 

(c) Any student-athlete, coach or school official in grades 7- 
12 who is ejected from any athletic contest shall be penalized as 
follows: 

(1 ) for the first offense, the person shall be reprimanded 
and suspended for the next game at that level of play 
(varsity or junior varsity) and for any intervening 
games at either level; 

(2) for a second offense, the person shall be placed on 
probation and suspended for the next two games at 



that level of play (varsity or junior varsity) and for 
any intervening games at either level. 

(3) for a third offense, the person shall be suspended for 
one calendar year. 

(4) A coach who is suspended at any level of grades 7- 1 2 
(middle school, junior high or high school) may not 
coach in any other grade level in grades 7- 1 2 during 
the period of suspension. 

(5) Penalties are cumulative from sport to sport and from 
sport season to sport season. If no member of the 
school's coaching staff is present to assume an ejected 
coach's duties, the contest shall be terminated by a 
forfeit. 

(d) LEAs may allow their schools to belong to the North 
Carolina High School Athletic Association (NCHSAA), which 
has established as a minimum the rules adopted by the SEE. The 
NCHSAA may waive any eligibility requirement contained in 
this Rule, except the age requirement, if it tlnds that the rule fails 
to accomplish its purpose or it works an undue hardship when 
applied to a particular student. The NCHSAA may enforce 
penalties for the violation of this Rule at the high school level. 

(e) The LEA which has jurisdiction over the school may 
impose additional penalties. LEAs or conferences may adopt and 
impose penalties at the middle and junior high school levels. 

Authority G.S. 115C-47(4): 

.0205 STATE BOARD REVIEW STANDARDS 
AND APPROVAL ACTIONS 

(a) Each IHE seek in g a ppr oval must pres e nt documentation 
for each s p ec i al t y a r ea that : 

fli the s t ate-ap p roved p r ofessio na l studi e s guidelines fo r 
all ce r t i ficated school p e r so nn el a r e adequately add r essed. 

(2) the stat e -a p p r oved p r ofessio n al studies competen c i e s 
common to all ce r tificated school pe r sonnel a r e 
adequately add r essed. 

(3) candidates for admission to certificatio n preparation 
p r ograms meet minimum sco r e requi r ements ado p ted 
by the SBE on Co r e Batte r ies I (Communicatio n 
Skills) and II (General Knowledge) of the NTE befo re 

formal — admission — can — occu r . Unde r g r aduate 

degree-seeking students do not complete more tha n 
one-half — of — the — professional — studies — seque n ce 
(excluding student-teaching/internship) befo r e bei n g 
formally admitted into the ce r tification p r epa r ation 
p r ogram. 

(4) sequentially — planned — fidd — experiences for 

undergraduate degree-seeking students begi n ea r ly in 



the student'; 



(5) 



: s program and culmi n ate m a contmuous 
and extended minimum te n -week pe r iod of student 
teaching i n the a r ea i n whic h th e student seeks 
certification. All tleld expe r i e nces a r e supe r vised and 
fo r mal evaluatio n s in vo lvi ng faculty, cooperat i ng 
teache r s and students occu r as a p p r opriate. 
pr e p a r a ti on f or e n t r y ce r t i fication at the advanced 
level — in clud e s — su p e r v ise d — internship — or — field 



14.12 



NORTH CAROLINA REGISTER 



December 15, 1999 



999 



PROPOSED RULES 



ex p e r iences appropriate to the role(s) for which 
students a r e being prepared. Tliese experiences are 
the basis fo r applyi n g theory to practice, developing 
competencies at a high proficiency — l e vel, and 
evaluati n g the candidate's pe r fo r mance . 

(6) the goals and objectives of the spec i alty studies are 
clearly stated in w r iting, a r e r ead il y a c c e ssible to 
faculty, students a n d othe r consu mer s a n d r eflect a 
clear conception of the r ole(s ) in the p ublic schools 
for which students are being prepa r ed. 

(7) an — appropriate — balance — among gene r al — studies, 
s p ecialty a r ea studi e s and professio n al stud ie s exists 
at the unde r g r aduate l e vel to assu r e a well- r ounded 
education fo r stude n ts. 

fS) the program of specialty studies complies with 

state-a p p r oved guidelines for the ce r tif i cation area in 

which the stud en t is being p r e p ared. 
f9) the specialty studies complies with state-app r oved 

competencies for the certification area in which the 

student is being prepared. 
(-H» maste r 's, s ixth-yea r (e.g., CAS. Cd.S.) and docto r al 



md 



irBj 



to se r ve the student po p ulation. 
f-HT) inst r uctional r esou r ces for the specialty ai ' ea ai ' e 
o r ga niz ed fo r accessibility and there is evidence of 
use by both students and faculty. 
("H^ a p p r op r iat e — and — sufficiently-equipped — classroom 
s p ace is p r ovided to meet the needs of each specialty 
area. 
(+9) adequate facilities, including suff i c ien t off i ce space, 
are prov i ded to se r ve the needs of staff a n d faculty, to 
counsel students, and to wo r k e ffectively with local 
school p e r sonnel. 
f2&) an annual review of the s p ec i alty a r ea is conducted 
and the resulting data are applied, as appropriate, for 
prog r am improvement. 
tb) All IHEs with existing t e ache r educatio n pro g r ams must 
have an NCATE/Stat e r eview completed by Decembe r 3 1 , 1992. 
Students who have been formally admitted befo r e June 30, 1 993 
into a p r ogram that leads to certificatio n may complete that 
p r ogram and be eligi b le to b e r e c ommended fo r certification on 
th e cond i tion that they com p lete suc h pr o gram s no late r t h a n 
Ju n e 30. 1995. Afte r Decem b e r 31, 1992. IIICs seeking initial 



another and from the undergraduate 



curricula are clearly delineated and diffe r entiated approval — for — teac h e r — education — must — be — reviewed — by 

NCATE/State to be eligible fo r SBC ap pr oval. 
txr) The SDE shall r ece i ve and con s ide r re comme n datio n s fo r 
t++i r equ ir ements fo r ce r t i ficat io n- o nly s t udents a r e clearly app r oval act i on on an IIIE f r om its state evaluation committee 

on t eac he r educat i on. The SDE shall acce p t any comments or 



from one 
cur r iculum. 



described and comparable to those for degree-seeking 

students. 

each faculty membe r teaching in the s p ecialty area 

demonstrates — competence — m — the — area(s) — of 

assignment. 



addit i o n al info r mation su b mitted by the IHE b e fore making its 



into r mation su 
decision under this Rule 



re maicing it 
Tlie SDE shall r ende r separate 



r iate to an IIIE and its 



one- 



a ppr o pr iately — specialized — fac ulty — membe r 
full-time — to — the — institution — is — assigned — major 
r e sponsibility fo r teac h ing i n a n d coo r di n ati n g each 
specialty a r ea offe re d. To ensu r e dive r sity, the r e must 
be — a — suffic i ent — num b e r — of additional — faculty, 
appropriately specialized, to deliver t he level(s) 
offered; e.g., u nder g r aduate, maste r 's, specialist. Each 
advanced deg r ee p r ogram that leads to the doctorate 
has at least three full-time faculty who have earned 
the doctorate i n the field of s p ec i alization fo r which 
the deg r ee is offe red. 
fM) amo n g the c r edentials of the faculty delivering (e.g., 
teaching, directing, coordinating) the s pe cialty a r ea. 



approval decisions at all l e vels appropri. 
s pe cialty a r ea prog r ams as follows : 

tJi Full app r oval. — This status indicat e s th a t the IHE 
t e ache r education and specialty area p r og r ams at all 
levels a r e judged to be fully qual i fied to produce 
effective teache r s fo r the publ i c schools. Tlie SDE 
grants approval for a five-year pe ri od. The SDE o r 
the IHE may call for an inte r im on-site r eview at any 
time duri n g the fi v e yea r pe r iod if co n ditions warrant 
that act i on. 
(2) Full app r oval with stipulation(s). Tliis status s p ecif i es 
ions that the IHE must add r ess within one 



rm no r except 

Tlie exceptions wi 



i/nnm one yea r - 
be limited to those that can be easily 



co rre ct e d and ver i fied i n a written report o r by a s m all on-site 
State visitation team. Th e SDE will grant full app r oval if the 



there is e v idence of r ecent, substantive i nvolvement IIIE co rr ects the exce p tio n s with in the specified t i me. If the IIIE 



with public — school students, staff membe r s or 
pr og r ams. 
(T5j amo n g the credentials of adjunctypa i' t-time faculty 
delivering the specialty a r ea the r e is e v i de n ce of 
r ecent, substantiv e in volvement with the institution 
via students, othe r faculty o r p r og r am development. 



(+6^ specialized books and pe r iodicals. 



.cu rr ent cu r riculum 
guides, textbooks and courses of study adopted by 
local school systems and the SDE. inst r uctional 
media, equipment and othe r fo r ms of tec hn ology, 
test in g mate r ials and su pp l i es fo r the pr oduction of 
teac h e r -made mate r ials a n d lib r a r y r esou r ces fo r the 
s p ecialty studies a re available and adequate in number 



does not cor r ect the exceptions within the s p ecified time, the 
SDE w i ll place the IHE on provisional status. Approval fo r a 
five-yea r p e r iod begi n s with the date of the initial action by tlie 
rnrtr: 

t?ri P r ovisio n al app r oval. — Tliis status sp e cifies critical 
deficiencies that the IHE must add r ess withi n thre e 
years. — Tlie SDE may p r ovisionally a p p r ove all 
prog r ams at the IIIE o r in dividual specialty area 
programs or levels. Tlie IIIE must : 
tA) submit to the SDE an a nn ual written r e p ort of 

its actions taken to correct the deficiencies: 
(fr) be visited annually by a consultant from the 
divisio n of teacher education servic e s of the 



WOO 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



D e partm e nt, who monito r s the IHE's prog r ess; 

and 
f€^ he reevaluated fo r co mp l i ance by an on-sit e 

State visitat i on t e am . 
Tlie SDE will g r ant full app r oval or full a ppro val with 
stipulations if the IHE co r rects the def i ciencies with in 



(5) 



levels of competency e xpected. 

Tlie program addresses the needs of the students. 



f6) The pr og r am includes exit levels of co m petence, a 
p r ocedu r e fo r r ecommending certification, and a 
follow-u p process. 
(e) Tlie SDE may g r a n t a ppr oval to a n HIE to develop a n ew 



th e s p ecified time. If the HIE does n ot co rr ect th e innovative or expe r im e ntal teach er educatio n pr og r am. Tlie SDE 

deficienci e s within the specified time, the SDE will shafl — co n sider — for — appr oval — stieh — a — pr og r am — based — on 

deny approval. — App r oval for a five-year period documentation that the p r opos e d i nn ovat i on i s sound a n d has the 

begins with the date of the initial action by the SDE. potential — for — strengthening — the — pre pa r atio n — p r ocess — for 

t4) Denial of app r oval. Tills status occurs when an HIE p r ofessional personnel. — Tlie SDE will e val u ate th e pr og r am 



o r one or mo r e of i ts specialty areas or levels are 
judged to be u n qualified to p r oduce effective teachers 
fo r the public schools. After the HIE r eceiv e s notice 
of the den i al, n o students completing the program will 
be e ligible fo r ce r tificatio n except those who we r e 
fo r mally admitted to the program before the HIE 
r eceived notice of the de ni al. An HIE must wait one 
year — b efo r e — b eginni n g — the — process — of seeking 
a ppr oval. 



Authority N.C. Constitution, Article IX. Sec. 5; G.S. I15C- 
12(9)a.: lI5C-296(b). 

.0206 CONSORTIUM-BASED PROGRAMS AND 

INNOVATIVE/EXPERIMENTAL PROGRAMS 

ts) A con s o r tium-based teach er educatio n pr og r am is a n 
alte r native to the r egula r a p p r oved p r og r am which involves 
IIIEs, public schools, p r ofessional g r ou p s and the Depa r tme n t 
in the planning and implementation of pr og r ams. 

tb) The conso r tium shall r eceive a p p r oval by the SDE before 
it im p lements an alte r native p rog r am. The ap p lication p r ocess 
d esc r ib e d i n Rule .0202 applies to alte r native programs. The 
Depa r tme n t shall issue a certificate to all g r aduates of these 
ap pr oved pr og r ams who a r e r ecommended by the consortium 
and who othe r wise meet certification requirements. 

tc) When the Department r eceives a proposal to establish a n 
alternative p r og r am, it shall r eview the proposal, including 
making on-site visits with agencies as required. — Tlie State 
Evaluation Committee on Teacher Education shall co n sider staff 
r ecommendations and make its own recommendatio n s to the 
SDE fo r app r oval. 

(ti) The SDE shall approve prog r ams wh ic h m e et the 
following standa r ds : 

fV) The program is planned, developed, implemented and 

evaluated by a consortium of agencies, including 

IHEs, local school administrative units, professional 

groups and the SEE. 

(2) The — pr og r am — is — app r opriately — o r ga nize d — and 

adm i n i ste r ed . Conso r tium-based — p rog r ams — arc 

developed — and — im p lemented — acco r ding — to — an 
established ma n agerial structure which describes 
activities and relationshi ps . 
(fV) The p r ogram has suffici ent and app r op r iate supportive 

human and physical r esou r ces. 
t4) The consortium develops ent r y r equireme n ts and 



annually based on a written report sub m itted to it by the IHE o r 
by a n on-site State visitation team t o assu r e that the IHE is 
p r oduci n g p r ospective teachers who can function effectively in 
the public schools of the State. 

Authority N.C. Constitution. Article IX. Sec. 5: G.S. 115C- 
12(9)a. 

.0207 PROSPECTIVE TEACHER SCHOLARSfflP 
LOANS 

(a) Recipients of prospective teacher scholarship loans who 
attend a college or university will receive up to $2,000 the 
amount specified in G.S. 1 15C-471(1) per year to pay for 
courses, fees and books. Recipients of prospective teacher 
scholarship loans who attend a technical/community college will 
receive $900 per year to pay for courses, fees and books. 

(b) Scholarship loans arc shall be available only to legal 
residents of North Carolina. To be considered a legal resident, 
a person must have lived in the state for at least 12 months 
before applying for the loan. 

(c) Persons who are in default on another student loan will 
not be eligible for a scholarship loan under this Rule. 

(d) Scholarship loan recipients must enroll in and attend a 
public or private college or university in this state with an 
approved teacher education program, or a technical/community 
college in this state with a program of study that leads to teacher 
licensure. 

(e) A recipient's scholarship loan may be continued during 
periods of study abroad only if the recipient remains enrolled in 
a North Carolina college or university and receives credit toward 
completion of requirements for the work completed while 
abroad. 

(f) Scholarship loans may not be used to obtain credits 
through correspondence courses or extension courses even if the 
recipient uses less than the maximum amount as an 
undergraduate. 

(g) The department may cancel a loan if the recipient: 

(1) willfully reports requested information that is 
erroneous or incomplete; 

(2) fails to complete and return requested forms by the 
required dates; 

(3) fails to pursue a full-time program in teacher 
education or withdraws permanently from college; 

(4) is not admitted to the colleges teacher education 
program; 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1001 



PROPOSED RULES 



(5) is convicted of a felony or other crime involving 
moral turpitude, possession or use of controlled 
substances, or other grounds for which a teaching 
certificate may be revoked under 16NCAC6C .0312; 

(6) does not maintain a 2.5 cumulative average for the 
freshman year and a 3.0 cumulative average for each 
of the following years, based upon a 4.0 grading 
scale; or 

(7) fails to keep the department informed of any address 
change or change in status as a prospective teacher. 

(h) Upon cancellation or default, the entire principal balance, 
together with accrued interest, becomes shall become 
immediately due and payable. 

(i) Once a recipient receives a license based upon the entry- 
level degree, the amount of the loan and accrued interest must be 
repaid by either employment as a regular full-time teacher or by 
making cash payments. Recipients who do not begin teaching in 
the school year following their qualifying for licensure must 
begin repayment upon their failure to begin teaching. Repayment 
shall be made in full or in equal monthly payments as 
determined by the Department, contingent upon the number of 
notes received. 

(j) For purposes of credit for teaching, "full school year" 
mcansshall mean a minimum of six calendar months within one 
school year. Service as a tutor, a substitute teacher, a part-time 
teacher or a teacher in a non-public school docs shall not qualify 
as service credit for loan repayment. 

Aiirlwrin- G.S. 1]5C-47I. 

SECTION .0300 - CERTIFICATION 

.0301 GENERAL INFORMATION 

(a) Any person who desires to obtain employment from a 
LEA in a professional position shall apply for and obtain 
ce r tification a license from the department. Each applicant shall 
file an application in the fo r m prescribed b y the department , 
together with an official transcript(s), a recommendation by a 
designated official of the approved IHE where preparation was 
completed, and the ce r tification licensure fee in an amount 
which the SDE dete r mines a n nually, specified in G.S. 1 15C- 
296(a2). 

(b) The department evaluates shall evaluate each application 
and its supporting documentation and n o t ifies shall notify each 
applicant of the action it takes. 

(c) An applicant who desires to upgrade, renew or add new 
fields to a ce r tificat e license shall supply documentation to the 
department which that supports the desired action. 

(d) A class "A" teaching certificate license may be changed 
from early childhood, intermediate, middle grades or secondary 
to either of the other categories upon the applicants completion 
of the appropriate program for such ce r tificat e the license . An 
applicant who secures credit as provided in Rule .0302 of this 
Section for new subject or teaching fields may have these fields 
added to a teaching ce r tificate, license. 

(e) All certificates issued by the department are eff e ctive July 
1 of the y e ar of issue o r upon the date that the r e quir e ments a j" e 



completed. Certificates are valid fo r the remainde r of the fiscal 
yea r in which the pe r son e s t a bli s he s c ertification qualifications 
with the department o r up to a five yea r period following July 1 
o r the date the person complet e s certification requi r eme n ts. Five- 
yea r dating cycles are initially bas e d o n the completion of credit 
r equi r ements to qualify fo r ce r tification, the compl e tio n of 
cert i ficates renewal , o r a valid ce r t i ficate held from anothe r state 
with which recip r ocity has b e en established. New five-year 
dat in g cycles a r e established only whe n an ex pir ed c er tificate is 
r e n ewed. The department shall base the effective date of a 
license on the date the applicant completed the educational 
proiiram requirements for the license. For applicants who 
completed these requirements before the current fiscal year in 
which the application is processed, the effective date shall he 
July I. For applicants who have completed these requirements 
within the current fiscal year in which the application is 
processed, the effective date shall be the date the applicant 
completed the requirements. Every license shall expire on June 
30 unless it is renewed or extended in accordance with the 
provisions of this Section. A provisional license issued pursuant 
to Rule .0305(c) of this Section shall be valid for one year. A 
lateral entry license issued pursuant to Rule .0305(b) of this 
Section shall be valid for two years. The initial license issued 
pursuant to Rule .0304(c)(l ) of tins Section shall be valid for 
three years. The continuint; license issued pursuant to Rule 
.0304(c)(2) of this Section shall be valid for five years. 

(f) Any certificated licensed person may apply to the 
department on forms which that it fu r nis h e s shall furnish for a 
duplicate certificate license , in the event the original is lost, or 
for the change of the applicant's name. 

(g) Professional personnel may be assigned only to areas in 
which the individual holds ce r t i ficatio n a license , a provisional 
ce r tification license , endorsement or provisional endorsement as 
required by the department. The LEA may assign any certified 
licensed teacher who is the best qualified to teach remedial 
courses, regardless of certification license area. This provision 
does shall not apply to any vocational certificate license which 
that has been restricted by the department as a part of completing 
certificat i o n licensure requirements. 

Authority G.S. H5C-12(9)a: N.C. Constitution, Article IX, Sec. 
5. 

.0302 CREDIT 

(a) The department computes shall compute all credit for 
ce r tification licensure , including residence, extension and 
correspondence credit, in semester hours. The department 
com p ute s shall compute credit for r ecertificatio n re-licensing or 
renewal purposes in quarter hours. A quarter hour has shall have 
the value of two-thirds of a semester hour. 

( b ) The department may accept extension and correspondence 
credit earned from an accr edited IHE that has been accredited by 
a national or regional accrediting authority such as SACS at the 
class "A" certification license level and below, for purposes of 
renewal, adding a teaching subject and removing deficiencies. 
The department wiH shall allow no more than six semester hours 
of correspondence credit per certificate action. For purposes of 



1002 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



upgrading undergraduate c er tificates licenses , a maximum of 10 
of the 30 semester hours required for raising the cert i ficate 
hcense to the next higher level may be extension and 
correspondence credit. The approved IHE that has been 
approved under Rule .0202 of this Subchapter shall accept all 
credits applying to graduate ce r tifica t es licenses and ce r tificat es 
licenses in the special services areas, including all ce r tificates 
licenses above the "A" level. 

(c) When a person earns credits in more than one IHE before 
obtaining a degree, the person shall transfer the credit to an 
approved IHE whrch that the person has attended or expects to 
attend. The person must be enrolled in an approved teacher 
education curriculum at the IHE. 

(d) A person may use credit used for renewal or reinstatement 
of a certificate license of lower rank toward upgrading a 
ce r titlcate. license. 

(e) The department wtH shall retain all credits submitted to it. 
TTie department wtH shall not return transcripts nor furnish 
certified copies of credits to applicants. 

Authority G.S. 115C-12(9)a: N.C. Constitution. Article IX. Sec. 
5. 

.0303 PROGRAM REQUIREMENTS FOR 
LICENSURE 

In order to receive the initial regular certificate license , an 
applicant must obtain the bachelor's or other required degree. 
The applicant must also receive a recommendation from the IHE 
which that includes the approval or endorsements of iroth the 
administrative head of the professional education unit, unit and 
the departments or a r eas in w h ich ce r tification is sought. The 
IHE must determine that the candidate has satisfied all minimum 
score requirements on standard examinations specified by the 
SBE before it makes a recommendation. 

Authorities. ]I5C-12(9)a:N.C. Constitution. Article IX. Sec. 
5. 

.0304 LICENSE PATTERNS 

(a) Certificates Licenses shall indicate grade levels, content 
areas, areas and specializations and prepa r ation lev e ls for which 
the professional has been p r epared, shall be eligible for 
employment, as well as preparation and experience levels. 

(b) Certificates are Licenses shall be of the following tvpes: 
( 1 ) Teacher. The ce r tificate e n titles license shall entitle 

the holder to teach in some designated area of 
specialization at the elementary, middle, or secondary 
level . There arc shall be four levels of preparation: 

(A) bachelor' s deg r ee; degree (A level) ; 

(B) master' sdegree degree (G level) ; 

(C) sixth-year; sixth-year (AG level) ; and 

(D) doctorate doctorate (DG level) . 

The teacher license shall further be categorized as 
prekindergarten B-K. elementary K-6. middle grades 
6-9. secondary 9- 1 2. special subjects K- 1 2. and work 
force development. 



(2) Administrator/supervisor. The holder may serve in 
gen er al generalist and program administrator roles 
such as superintendent, assistant or associate 
superintendent, principal, assistant principal or 
curriculum-instructional specialist. There arc shall be 
three levels of preparation: 

(A) master's degree; 

(B) sixth-year; and 

(C) doctorate. 

(3) Student services area. The holder may provide 
specialized assistance to the learner, the teacher, the 
administrator and the education program in general. 
This category i ncludes the counselor and school 
p sychologist, shall include school counseling, school 
social work, school psychology, audiology. speech 
language pathology, and media. There are shall be 
three levels of preparation as in the case of the 
administrator/supervisor, except that the — s choo l 
psychologist is school psychology shall be restricted 
to the sixth-year or doctorate levels, and school social 
work may be earned at the bachelor'slevel. 

(c) The department bases shall base certificate license 
classification on the level and degree of career development and 
competence. There are shall be two classifications of c e r t i ficates . 
licenses: 

The initial ce r tificate license, which is shall be valid 



(1) 



(2) 



for two three years, allows shall allow the holder to 
begin practicing the profession on an independent 
basis. Only those pe r sons who are actually beginning 
in the p r ofession require initial ce r tification. Pe r sons 
who seek certitlcation in this state fo r the fi r st t i me 
and who have two yea r s of a p p r op r iate expe r ience as 
dete r mined by the d epar tment are eligible for a 
continuing ce r tificate. Tl ie holde r must serve at least 
one period a day fo r two years in a teaching 
assignme n t ap p rop r iate to the holder's area of i n itia l 
certificatio n . If the holder is not appro pri ately placed 
in-field fo r a two-yea r period the holde r and/o r t h e 
holde r 's employe r must apply to the depa r tment to 
extend the initial certificate. Tlie depa r tment may 
extend the initial certificat e fo r u p to two yea r s , 
pr ov id ed that the - exte n sion occu r s with in five yea r s of 
the date of qualific a tion as dete r mi n ed by the dating 
and/or renewal r equireme n ts c on tained i n Rules 
.0301(e) and .0307 of th i s Subchapte r . The holde r 
may have the certificate cha n ged to a co n tinuing 
ce r tificate as provid e d in sub p a r ag r aph (d) of this 

KUIC. 

The continuing certificate autho r izes license shall 
authorize professional school service on a continuing 
basis: an ongoing basis, subject to renewal every five 
years. This classification i n cludes three categories : 
tA) teache r (class "A" unde r graduate a n dclass "G" 
g r ad u ate) in the following areas : 
(f) ea r ly childhood education. K-4 ; 
tn) inte r mediate education, 4-6; 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1003 



PROPOSED RULES 






firH middle g r ades education, 6-9; 
(rvi seconda r y specializations, 9-12; 
fv) special areas; and 
(vi) occupational, 
administrato r ; and 
education specialist. 



t&) To convert the initial certificate to a continuing certificate, 
th e ho l de r m u st serve two years with a LEA or a non-public 
school that has a comp r ehensive prog r am pla n fo r initially 
c ertif i ed p e r so nn el that meets the c r iteria contained in this 
subparag r aph and that is app r oved by the SDE; meet the 
performance criteria for conve r sion of an initial certificate to a 
continuing certificate; and be recommended by the locally 
desig n ated off i cial of the LEA or non-public school by which 
the holde r is em p loyed. Fo r pur p oses of this Rule, "year" means 
not less than six successive calendar months of full time 
employment in one LEA or non-public school with an ap pr oved 
p r og r am plan. 

Hi Each LEA shall develo p a comp r ehensive program 
plan for initially ce r tified personnel and present the 
plan to the SDE fo r approval. Non-public schools that 
irave — a — state-a ppr oved — plan — tti — administe r — the 
ce r tif i cate r enewal prog r am may also submit a plan 
fo r approval. Doth LEAs and non-public schools must 
update their plans by Octobe r 15 of each year and 
su b mit those plans to the SDE. Each plan must: 
(A) describe adequate provisions fo r efficient 

management of the p r og r am ; 
(fil pr ovide fo r formal orientation fo r initially 
certified — pe r sonnel — describing — available 
services, training opportunities a n d the p r o c e ss 
fo r achieving a continuing certificate ; 
fG) p r ovide fo r the assignment of a mento r team o r 
support team, as dete r m in ed by the LEA o r 
non-public school, for each initially certified 
person; 
(©) provide fo r the princ ip al o r pr inc ip al's designee 
to share res p onsi b ility for providing support, 
whe r e the LEA or non-public school deems a 
mento r team to be the appropr i ate support ; 
(E) include on the sup p o r t te a m a ca r ee r status 
teache r , the pr i n c i pal or p r incipal's designee. 
and — a — generalist — or — a — s p ecialist — in 
cur r iculum/instructio n . Othe r p e r sonnel such as 
HfB — members — err — central — office 
superviso r /administ r ato r staff may be used as 
r esou r ces to the team as needed; 
fF) p rovide for a minimum of th r ee o b se r va ti o ns 
pe r year, using the t~i r st f iv e function areas of 
the — No r th Ca r olina Teacher Performance 
Appraisal Inst r ument/Initial Certification for 
teachers, the f ir st of which must be fo r at least 
o n e period o r instructional activity, preceded 
by a pr e- c onfe r ence and followed by a post- 
confere n ce. The othe r s may be unannounced 
but must be for at least one pe r iod or 
inst r uctional activity and be followed by a 



(G) 



/'" NT\ 



post-conference. All pe r sons who observe 
teachers must be trained in the use of the first 
five — function — areas — of — the — p erformance 
ap p raisal instrument for teachers. The first 
obse r vation must occur befo r e Octobe r 30, the 
second must occur between Octobe r 30 and 
January 15, and the third must occu r after 
January 15 and before Ap r il 15; 
provide for the prepa r atio n of an individualized 
p r ofessional — devel op me nt — plan — for — each 



initially certified person 
st r ategies and progress 
professional skills; 



that identifies goals. 



toward improving 



ttt) pr ovide for structu r e to i dentify and deliver 
se r vices and technical assistance needed by 
initially certified personnel; 
if) provide for maintenance of a cumu l ative 
p ortfol i o — that — contai n s — the — pr ofessional 
development plan and official docume n tation 
of performance in the first five function areas 
of the performance appraisal instrument; 
ti) provide — for — the — timely — t r ansfe r — of — the 
cumulative po r t f olio to additional employing 
LEAs within the state upon request of an 
initially certified employee; 

(i€) assu r e that the p r og r am p lan was develo pe d 
togethe r with IIIE(s) having app r oved teacher 
educat i on — prog r ams — and — describe — their 
continuous involvement with the program; 

ft) desc r ibe a plan fo r the s y stematic evaluation of 
the — program — to — assure — p r og r am — quality, 
effectiveness, and efficient management; 

(M) designate — a — person — to — ve ri fy — successful 
completion of the two-year initially certif i ed 



-and 



program and make recommendations; 

document that the LEA or non-public school 

has adopted the plan. 

t¥) No later than April — 15 of the second yea r of 

employment of the initially- certified person, the 

locally desig n a t ed offic i al shall determine whether the 

pe r son will be r ecommended for conve r sion to a 

continuing — certif i cate. — The — official — makes — this 

dete r mination based on the info r mation contained in 

the holde r 's cumulative portfolio. Tlie official shall 

not recommend fo r conve r sion any p erson who has 

not performed "at standard" o r highe r on each of the 

fi r st five functio n a r eas of the perfo r mance a p p r aisal 

i n st ru me n t f or teac h e r s on the final obse r vation prior 

to April 15 of the seco n d yea r of employment. 

tA) Tlie official makes the recommendation on a 

form p r esc r ibed — by — the department. — The 

department reviews each r ecommendation to 

determine whethe r the person has in fact 

achieved at least the requi r ed at-standard 

pe r fo r mance level. If the pe r son has achieved 

the r equi r ed p e r formance level, the department 

shall app r ove the recommendation of th e 



1004 



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14:12 



PROPOSED RULES 



locally designated offi ci al. If the p er son has not 
achieved the requ ir ed performanc e level, the 
de p a r tme n t shall not approve the issuance of a 
cont i nuing certificate. 
(fi^ Any person not r ecommended fo r conve r sion 
from an i n i t ial c er tificate lo a continu in g 
ce r tificate m ay have that act i on re view e d by 
fil in g a contested case pet it ion in acco r danc e 
with A r t ic le 3 of Chapter 150D of the Gene r al 
Statutes. As an alternative, the pe r son may 
contact an approved teacher education program 
and complete a program of study as prescribed 
by the IIIC to cor r ect deficiencies. After the 
person successfully completes the required 
additional t r aining, the II IE must r ecommend 
the pe r son for a new in i tial certification. Tlie 
holde r must then satisfy the performance 
r equireme n ts of this Subparagraph. 
(3) Tlie continuing ce r tificate authorizes profess i onal 
school — se r vice — on — a — continuing — b asis. — This 
classification includes th r ee catego r ies : 
(A) teacher (class "A" unde r graduate and class "G" 
g r aduate) in the following areas : 
(t) elementary education. K-6: 
tn) middle grades educatio n . 6-9; 
irn) secondary special i z ati ons. 9-12 ; 
(tv) special a r eas. K-12; and 
fv) occupational. 
(fi) administrator/supervisor; and 
(€) student service pe r son n el. 

Authority- G.S. ll5C-12(9)a: N.C. Constitution. Article IX. Sec. 
5. 

.0305 LICENSES FOR NON-TEACHER 
EDUCATION GRADUATES 

(a) A person who has not graduated from an approved teacher 
education program who later desires to teach shall have his/her 
credentials evaluated by an approved IHE or teacher education 
consortium. The person shall satisfy the assessment of his/her 
needs and be recommended by the IHE or consortium for 
ce r tificatio n , a license. 

(b) Persons who have been selected for employment by a 
LEA under the lateral entry provisions of G.S. 1 1 5C-296(c) may 
obtain certification a license as follows: 

(1) The applicant and the LEA must file a joint 
appl i cation — with — the — department. — includ i ng — att 
suppo r ting c r edits, experience, test sco r es, a n d othe r 
p ertinent i n fo r matio n . To be eligible for a lateral entry 
license, a person shall: 

(A) have attained a bachelor' sdegree in the license 
area from a regionally-accredited IHE; 

(B) be recommended for a lateral entry license by 
the employing LEA; and 

(C) have had a minimum cumulative grade point 
average of at least a 2^ or have passed the 



NTE PRAXIS 1 exams (Preprofessional Skills 
Tests in Reading. Writing, and Mathematics) 
and have attained one of the following: 
(i] a grade point average of at least 3.0 on 

all work completed in the senior year; 
(ii) a grade point average of at least 3.0 in 

the major; or 
(iii) a grade point average of at least 3.0 on 
a minimum of J_5 semester hours of 
coursework completed within the last 5 
years. 
(2) Th e de p a r tme n t issues late r al e n t r y ce r t i fication in the 
same a r eas and classes as it issues to re gula r teacher 
education g r aduates. A person who holds a lateral 
entry license shall complete a program that includes 
the following components: 

(A) The employing LEA shall assess the person's 
transcripts and experience in collaboration with 
an approved teacher education program of an 
IHE or an alternative licensure program 
approved by the SBE. If the collaboration 
cannot occur, the LEA must document its 
efforts toward collaboration or the reasons why 
collaboration did not occur. The LEA must 
send that documentation with its 
recommendation that the person be issued a 
lateral entry license. As a result of the 
assessment, the LEA may identify 
competencies for which the person must 
receive training. 

(B) TTie employing LEA shall commit in writing 
to: 

£i] provide a two-week pre-work 
orientation that includes lesson 
planning, classroom organization, 
classroom management, and an 
overview of the ABCs Program 
including the standard course of study 
and end-of- grade and end-of-course 
testing; 

(ii) assign the person a mentor on or before 
the first day on the job; 

(iii) provide working conditions that are 
similar to those for novice teachers; 

(iv) give regular focused feedback to the 
person for improving instruction; and 

(v) assist the person in accessing prescribed 
course work and professional 
development opportunities. 

(C) The person shall attain passing scores on 
appropriate NTE specialty area or PRAXIS 2 
exams during the first two years of assignment. 

(D) The person shall complete a staff development 
program that includes a two-week training 
course prior to beginning the work assignment. 
together with 9 renewal hours or 6 semester 



14:12 



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1005 



PROPOSED RULES 



hours each year. 

(E) The person shall successfully complete the 
three-year initial licensure program in the 
lateral entry license area the person is seeking. 

(F) The person shall present evidence from 
evaluations that demonstrates three years 
successful experience in the license area the 
person is seeking. 

(G) The person shall attain a passing score on the 
PRAXIS principles of learning and teaching 
examination upon completion of the training 
identified as a result of the assessment 
described in Part (b)(2)(A) of this Rule. 

(H) The person shall complete all requirements of 
this Rule within 5 years of becoming eligible 
for a lateral entry license. 
(I) The IHE or alternative licensure program 
approved by the SBE shall recommend to the 
Department that the person be licensed. 

(fV) — Tlie department issues these ce r tificates subject to the 
pr ovis i ons of Rule .031 1 of th i s Section. 

(4) — T e ac h e r s — who — obtain — ce r tificatio n — under — this 
Pa r ag r aph mu s t have their c r edentials evaluated by an 
IHE which has an approved teache r education 
pr og r am. Tlie IHE should conside r the t e ache r 's 
knowledge and skill f r om previous training and 
expe r ience as it relates to those competencies r equired 
fo r the a re a o f c ertif i cation. 

(5) — The teache r may substitute successful teaching 
expe r ience for the student teaching r equirement. 

f6j — Tlie teacher must obtai n a satisfacto r y score on the 
NTE at th e next available administ r ation of the N IE, 
o r may substitute the Graduate Record Examination. 
in o r de r to maintain a valid ce r tificate. 

ft) P e r sons who have ful fil led all deg r ee r equ ir ements 

othe r than some minor or technical deficiency may 
apply for certification unde r this Parag r aph. Tlie 
p e r son may n ot have mo r e tha n six semeste r hours' 
sho r tag e a n d the pe r son must satisfy that shortage 
befo r e the beginning of the next fiscal year. 

(c) A person who is qualified to hold at least a class "A" 
teaching ce r t i ficate license may be issued additional areas of 
ce rtific at ion licensure on a provisional basis as needed by LEAs. 
The person must satisfy deficiencies for full cert i fication 
licensure at the rate of six semester hours per year. The person 
must complete this yearly credit before the beginning of the 
following school year and the credit must be directly applicable 
to the provisional area(s). The person must complete all credit 
requirements by the end of the fifth year of provisional 
certificatio n , licensure. 

(d) The Department shall issue an emergency license to 
persons who hold at least a baccalaureate degree but who do not 
qualify for a lateral entry license. The emergency license shall 
be valid for one year and may not be renewed. When it requests 
an emergency license for a person, the LEA must document that 
no appropriately licensed professionals or persons who are 
eligible for a lateral entry license are available to accept the 



position. 

ill 



ill 



To be eligible for an emergency license, the person 
must have attained a bachelor's degree from a 
regionally-accredited IHE and be recommended by 
the employing LEA 

A person who holds an emergency license shall 
complete a program that includes the following 
components: 

(A) The employing LEA shall commit in writing 
to: 

(i) provide a two-week pre-work 
orientation that includes lesson 



planning. 
classroom 



classroom 



m 



(C) 



organization. 

management, and an 

overview of the ABCs Program 
including the standard course of study 
and end-of-grade and end-of-course 
testing; 

assign the person a mentor on or before 
the first day on the job; 
provide working conditions that are 
similar to those for novice teachers; 
give regular focused feedback to the 
person for improving instruction; and 
assist the person in obtaining a teaching 
license. 
The person shall complete a staff development 
program that includes a two-week training 
course prior to beginning the work assignment. 
The LEA shall provide the person with on- 
going support designed to enhance the person's 
classroom teaching performance. 



ill] 

tiii) 

(iv) 
iv] 



Authority G.S. U5C-12{9}a: N.C. Constitution. Article IX. Sec. 
5. 

.0306 LICENSE ENDORSEMENT 

Within the operation of approved programs. IHEs may 
recommend persons who qualify for full certification licensure 
for an endorsement to that ce r tificatio n , license. The department 
i ssues shall issue an endorsement based on a minimum of 
eighteen hours in a specific content area where these hours are 
specifically related to com pe tencies r equired for full certification 
in that sub j ect license area. Certificate License endorsements arc 
shall be restricted to less than half-time teaching assignments. 

Authority G.S. 115C-l2{9}a; N.C. Constitution, Article IX, Sec. 
5. 

.0307 LICENSE RENEWAL 

(a) Ce r t i fic ates Licenses shall be valid for a period of five 
years from the effective date of issuance. Holders must renew 
their ce r tificates licenses within each five-year period. The 
Department shall apply license renewal credit to the person's 
ce r tificat e license tleld(s) and professional duties. 

(b) The Department shall base renewal or reinstatement of a 
certificat e license on 1 5 units of renewal credit. A unit of credit 



1006 



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14:12 



PROPOSED RULES 



is equal to one quarter hour or two-thirds of a semester hour of 
IHE college or university credit, JO hours of professional 
development, or one school year of teaching experience. The 
Department shall not reco r d less than o ne credit on a ce r tificat e. 
For thei r own employees. LEAs may a ppr ove staff development 
activities that ca rr y l e ss than one unit of c r ed i t. 

(c) Currently employed personnel shall maintain a 
p r of e ssional an individual growth plan. These persons may 
obtain renewal credit for the following activities: 
(1) college or university credit; c r edit activities ; 

teaching experience (one unit for eve r y each year); 

earning National Board for Professional Teaching 



(2) 



Standards certification or completion oi the National 
Board for Professional Teaching Standards 
certification process; 
t3)i4] local in-se r vice courses or wo r kshops which ca rr y at 
l e ast one u n it of r enewal c r edit and which completion 
of activities that meet the following criteria: 

(A) te n cl oc k hours of di r ect t r ai n i n g by the 
instructor will equal one unit of r enewal c r edit; 
The activity shall be delivered in a minimum of 
ten clock hours (one unit of renewal credit) 
over time with on-the-job application, 
feedback, and follow-up. 

(B) conte n t and instructional activities designed in 
a sequential ma nn er to develop specified 
c om p ete n c i es of a specific population; The 
activity shall have identified goals and 
objectives that are designed to increase 
knowledge or skills in the person's license area 
or job assignment. 

(C) The activity shall include focused content and 
instruction that are sequenced to develop 
specified competencies of a specific 
population. 

(0(D] The activity shall be conducted l«d by 
instructional personnel di r ectly supervised 
approved by the sponsoring school unit; a n d 
unit or employer . 

i&) (E) credit is granted on the basis of pr og r am 

completion and achievement of specified 

individual perfo r mance, which is dete r mined 

by — individual — evaluatio n — for — specified 

competencies; The activity shall include a 

focused evaluation designed to gauge the 

change in learner knowledge or skill and to 

guide the development of future programs. 

(4)(5j independent study of no more than five units of 

renewal credit per five-year renewal period which 

meets the following criteria: 

(A) teachers and other ce r tified licensed personnel 
help to develop local independent study 
procedures which the superintendent keeps on 
file and periodically sends to each c ert ified 
licensed employee; and 

(B) the employee and the superintendent or his or 



her designee plan the experience in advance, 
including identification of competencies to be 
acquired and an evaluation to determine 
satisfactory achievement of those 
competencies. 

(d) Each LEA LEAs and approved governing boards of 
schools a re r esponsible for assuring shall assure that all local 
c o urs es and courses, workshops and independent study activities 
which do not carry IHE credit meet the standards contained in 
this Rule. 

(e) LEAs may develop an alternative license renewal plan 
that is competency-based and results-oriented. The plan must 



describe the connection among professional development, the 
school improvement plan, and the individual's license area or 
job responsibilities through processes such as peer review and 
annual evaluation. The plan may waive specific hour 



requirements that a licensed employee must meet and focus 
instead on knowledge and skill acquired by participants. The 
plan must include outcome measures and must be approved by 
the Department in advance of its completion. 

(tr) £f) Agencies which th e De p a r tme n t autho r izes to 
administe r r enewal r equ ire ments locally shall LEAs must adopt 
a procedure to determine the appropriateness of credit in 
advance of the renewal activity, activities. In determining 
appropriateness the agency LEA must consider direct 
relationship to critical job responsibilities, suitability of th e 
content level and p r ope r ly established school improvement 
plans, and SBE strategic priorities to properly establish credit for 
the activity. Each agency LEA must report on participation in 
and effectiveness of renewal professional development activities 
as the De p artment requests, to the North Carolina Professional 
Teaching Standards Commission on an annual basis. 

if) Ig) Persons who hold a North Carolina certificate license 
but who are not currently employed in the public schools or by 
a ppr oved governing boards of nonpublic schools may earn 
renewal credit in college or university credit activities, or local 
courses and workshops on the same basis as currently employed 
persons. The Department shall evaluate the appropriateness of 
the credits based on their direct relationship to the license field. 
the suitability of the content level, and the requirements set out 
in Paragraph (c) of this Rule. 

Authority G.S. ]J5C-12(9)a; N.C. Constitution, Article IX. Sec. 
5. 

.0308 EXPIRED LICENSES 

All expired certificates licenses arc shall be invalid until 
reinstated. An applicant must earn a minimum of 15 units of 
appropriate credit during the five-year period immediately 
preceding the date of application for reinstatement to be eligible 
for reinstatement. A reinstated ce r tificate is license shall be valid 
for a five-year period which that begins from the date of 
completion of the required credits. 

Authority N.C. Constitution. Article IX. Sec. 5; G.S. 1I5C- 
I2(9)a. 



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1007 



PROPOSED RULES 



.0309 RECIPROCITY IN LICENSURE 

Persons who have not completed an approved teacher 
education program in this state may be eligible for certification 
a license by the department at the class "A" level as follows: 

( 1 ) graduates of institutions outside the state which that 
are accredited by the National Council for 
Accreditation of Teacher Education, provided that: 

(a) the applicant seeks ce r t i ficatio n a license in his 
major area(s) of preparation; 

(b) the applicant is recommended by the preparing 
institution for ce r t i f i cation a license in his 
major area(s) of preparation; 

(c ) the recommendation is supported by an official 
transcript supplied by the institution; and 

(d) the applicant seeks ce r tification a license in an 
area or level of teaching for which the 
department provides ce r tification, a license. 

(2) teachers accepted from other states under G.S. 1 1 5C- 
349 through 115C-358; 

(3) graduates who meet the standards developed by the 
National Association of State Directors of Teacher 
Education and Certification; and 

(4) teacher education graduates of accredited out-of-state 
institutions that are accredited by a national or 
regional accrediting authority such as SACS who do 
not meet the requirements of Subparagraphs ( I )-(3) of 
this Rule, who meet the following c ri te r ia : as follows: 
(a) The a p plicant is a g r aduate of an acc r edited 

senior college. 
ttr) Tlie de p artment awa r ds ce r tification a lice n se 
u n de r — this — p a r ag r ap h — orrfy — to — classroom 
teache r s at the bachelo r 's degree level . 

fc) (a) The department i ssues shall issue a reciprocity 

certificate license , which is a provisional 
ce r tifi c a t e license that is valid for one year. The 
department wfH shall remove the provisional 
limitation after the person has taught for one 
school year. 

fd) (b] The ce r tificate license covers shall cover only 

the areas and levels in which the applicant 
holds, or is qualified to hold, an out-of-state 
certificate license , 
(el (cj A person who holds a reciprocity ce r tificate 
license must satisfy the renewal requirements 
of Rule .0307 of this Section, 
(d) The applicant must hold or be qualified to hold 
the highest grade current certificate license in 
the state in which the applicant completed the 
bachelor's level teacher education program. 

Aitthorin-G.S. U5C-12(9)a: N.C. Constitution. Article IX. Sec. 
L 

.0311 TEMPORARY PERMIT 

(a) A candidate for certification a license who has not met the 
standard examinations requirement may shall receive a 
temporary permit if; 



( 1 ) the candidate did not know that a minimum standard 
exam.ination score was required for certification; a 
license; and 

(2) the candidate has not had the opportunity to satisfy 
this requirement after becoming aware of it. 

(b) A temporary permit is shall be valid for the remainder of 
the fiscal year during which c ert ificatio n the permit is 
established. Graduates of in-state approved programs are shall 
not be eligible for a temporary permit. 

Authority N.C. Constitution. Article IX. Sec. 5: G.S 115C- 
12(9)a. 

.0312 LICENSE SUSPENSION AND REVOCATION 

(a) The SBE may deny an application for ce r tification a 
license or may suspend or revoke a ce r tificate license issued by 
the department only for the following reasons: 

( 1 ) fraud, material misrepresentation or concealment in 
the application for c e r tification; the license; 

(2) changes in or corrections of the certificate license 
documentation which makes that make the individual 
ineligible to hold a ce r tificate ; license; 

(3 ) conviction or entry of a plea of no contest, as an adult, 
of a crime if there is a reasonable and adverse 
relationship between the underlying crime and the 
continuing ability of the person to perform any of 
his/her professional functions in an effective manner; 

(4) final dismissal of a person by a local board pursuant 
to G.S. 1 15C-325(e)(l)b., if there is a reasonable and 
adverse relationship between the underlying 
misconduct and the continuing ability of the person to 
perform any of his/her professional functions 
effectively; 

(5) final dismissal of a person by a LEA under G.S. 
ll5C-325(e)(l)e.; 

(6) resignation from employment with a LEA without 
thirty work days' notice, except with the prior consent 
of the local superintendent; 

(7) re vocation of a ce r tificate license by another state ; and 

(8) any other illegal, unethical or lascivious conduct by a 
person, if there is a reasonable and adverse 
relationship between the underlying conduct and the 
continuing ability of the person to perform any of 
his/her professional functions in an effective manner. 
manner; and 

(9) Failu r e failure to report revocable conduct as required 
under Paragraph (b) of this Rule. 

(b) In addition to any duty to report suspected child abuse 
underG.S. 7A-543, any superintendent, assistant superintendent, 
associate superintendent, personnel administrator or principal 
who knows or has substantial reason to believe that a certified 
licensed employee of the LEA has engaged in behavior that 
would justify revocation of the employee's c er tifica te license 
under sections (3), (4) or (8) of Paragraph (a) of this Rule and 
which behavior involves physical or sexual abuse of a child shall 
report that information to the Superintendent of Public 
Instructioa within two working days . For purposes of this 



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PROPOSED RULES 



section, the term "physical abuse" means shall mean the 
infliction of serious physical injury other than by accidental 
means and other than in self-defense. The term "sexual abuse" 
means shall mean the commission of any sexual act upon a 
student or causing a student to commit a sexual act, regardless 
of the age of the student and regardless of the presence or 
absence of consent. This Paragraph applies shall apply to acts 
that occur on or after October 1, 1993. 

(c) Upon the receipt of a written request and substantiating 
information from any LEA, local superintendent or other person 
in a position to present information as a basis for the suspension 
or revocation of a person's certificate, license, the 
Superintendent of Public Instruction will conduct an 
investigation sufficient to determine whether reasonable cause 
exists to believe that the person's ce r tificate license should be 
suspended or revoked. 

(1) If the Superintendent determines that reasonable 
cause exists to believe that the person's ce r tificate 
license should be suspended or revoked on one or 
more of the grounds specified in paragraph (a) of this 
Rule, the Superintendent shall prepare and file written 
charges with the SBE. 

(2) The SBE will review the written charges and 
determine whether the person's ce r tificate license 
should be suspended or revoked based on the 
information contained in the written charges. If the 
SBE determines that the written charges constitute 
grounds for suspension or revocation, it shall provide 
the person with a copy of the written charges, and 
notify the person that it will revoke the person's 
c e r t i ficate license unless the person, within 36 60 days 
of receipt of notice, initiates administrative 
proceedings under Article 3, Chapter 150B of the 
General Statutes. The notice will be sent certified 
mail, return receipt requested. 

(3) If the person initiates administrative proceedings the 
SBE will defer final action on the matter until receipt 
of a proposed decision as provided for in G.S. 150B- 
34. If the person does not initiate administrative 
proceedings within 36 60 days of receipt of notice, the 
SBE may suspend or revoke the person's ce r tific a t e 
license at its next meeting. 

(d) The SBE may suspend an individual's c er tific ate license 
for a stated period of time or may permanently revoke the 
certificate license , except as limited by G.S. 1 15C-325(o). 

(e) The SBE may accept the voluntary surrender of a license 
in lieu of seeking revocation of the license. Before it accepts a 
voluntary surrender the SBE shall make findings of fact 
regarding the circumstances surrounding the voluntary surrender 
to demonstrate that grounds existed under which the SBE could 
have initiated license revocation proceedings. TTie SBE shall 
treat a voluntary surrender the same as a revocation. 

(c) (D The SBE may reinstate a suspended or revoked 
certificate license or may grant a new ce r tificate license after 
denial of ce r tificatio n a license under Paragraph (a) of this Rule 
upon application and showing of good cause cause, as defined 



by 26 NCAC 03 .0118, by the individual. The burden of proving 
good cause is on the applicant The SBE will not grant any 
request for reinstatement or for granting a new ce r tificate license 
unless it fmds as facts that: 

( 1 ) the action that resulted in revocation or denial of 
c er tificat i on the license did not involve abuse of 
minors; possessio n , — sttk — or — use — of co n t r olled 
su b sta n ces; moral turpitude or grounds listed in G.S. 
1 1 5C-325 (e)(l )b; 1 1 5C-325( e )( 1 )b o r e; 

(2) the person has no record of subsequent behavior that 
could have resulted in ce r tificate license revocation; 
and 

(3) there is no court order or judicial determination that 
would prohibit the person from returning to or 
holding a certitlcated licensed position. 

ff) £g] The SBE will notify all other states of all actions 
which involve the denial, suspension, r evocation revocation, 
surrender, or reinstatement of a certificate. 

Authority G.S. H5C-12(9)a; N.C. Constitution. Article IX. Sec. 
5. 

.0313 CRIMINAL HISTORY CHECKS 

(a) An LEA may obtain criminal history checks on applicants 
for employment as provided in G.S. 1 15C-332 and on applicants 
and current employees as provided in G.S. 1 14-19. 2(a). 

(b) An LEA shall not make any employment decision based 
solely upon the criminal history check (computer printout) 
provided by the Department of Justice whether provided 
pursuant to G.S. 1 15C-332 or G.S. 1 14- 19.2(a). An LEA shall 
obtain from the repository of the record a certified copy of the 
applicant's or employee'sconviction or shall consult with legal 
counsel prior to making a final employment decision based on 
the conviction. 

(c) An LEA shall maintain data from a criminal history check 
from Department of Justice in paper format only, in a locked, 
secure place, separate from the individual's personnel file. Only 
those officials who have been designated by the local board of 
education as having a need to know the results of a criminal 
history check may obtain access to the records. Certified copies 
of records of convictions are public records and need not be 
maintained in accordance with this Rule. 

(d) In the event that the LEA discovers as a result of a 
criminal history check from Department of Justice that any 
applicant or employees employee who possesses a ce r tificate or 
license issued by the SBE has a criminal history, the LEA shall 
notify in writing the SBE office of legal counsel and shall 
submit to that office a certified copy of the record of conviction 
or convictions or information of where to obtain the record of 
conviction, including the person's name, criminal case number 
and the county of conviction. The office of legal counsel may 
initiate license o r certiticate revocation as appropriate. 

(e) Nothing in this Rule is intended to prohibit suspension 
with or without pay or demotion or dismissal pursuant to the 
provisions of G.S. 1 1 5C-325 without any requirement that there 
be actual conviction of a crime. 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1009 



PROPOSED RULES 



Authority 1995 Session Laws. c. 373, s. 3. 

SUBCHAPTER 6E - STUDENTS 

SECTION .0200 - SCHOOL ATHLETICS AND 
SPORTS MEDICINE 

.0202 INTERSCHOLASTIC ATHLETICS 

(a) Only students in grades 7-12 may participate in 
interscholastic athletic competition. In order to qualify for public 
school participation, a student must meet the following 
requirements: 

( 1 ) The student must meet the residence criteria of G.S. 
I l5C-366(a). The student may participate only at the 
school to which the student is assigned by the LEA, 
or, if over the age requirements, the school to which 
the student would be assigned at the next higher grade 
level. 

(2) The student must meet age requirements at each grade 
level to participate. The principal must have evidence 
of the legal birth date of the student. A student who is 
ineligible to participate at one grade level due to age 
is eligible to participate at the next higher grade level 
only. However, no student may participate at the high 
school level for a period lasting more than eight 
consecutive semesters, beginning with the student's 
first entry into grade nine or participation on a high 
school team, whichever occurs first. 

(A) A student is eligible to participate in high 
school athletic contests during a school year if 
the student does not reach the 19th birthday on 
or before October 16 of that school year. 

(B) A student shall not participate on a ninth grade 
junior high school team if the student becomes 
1 6 years of age on or before October 1 6 of that 
school year. 

(C) A student shall not participate on a seventh or 
eighth grade team if the student becomes 15 
years of age on or before October 16 of that 
school year. 

(3 ) In grades 9- 1 2, the student must pass at least seventy- 
five percent (75%) of the maximum of possible 
courses each semester and meet promotion standards 
established by the LEA. In grades 7 and 8, the student 
must meet state a n d local promotio n standa r ds a n d 
ma in tai n passing g r ades each semester, pass at least 
one less course than the number of' required core 
courses each semester and meet promotion standards 
established by the LEA. Regardless of the school 
organization pattern, a student who is promoted from 
the eighth grade to the ninth grade automatically 
meets the courses passed requirement for the first 
semester of the ninth grade. 

(4) The student must receive a medical examination each 
year (365 days) by a duly licensed physician, nurse 
practitioner, or physician assistant, subject to the 



provisions of G.S. 90-9, 90- 1 8. 1 , and 90- 1 8.2. 
(5) The student may not participate after any of the 
following: 

(A) graduation; 

(B) becoming eligible to graduate; 

(C) signing a professional athletic contract; 

(D) receiving remuneration as a participant in an 
athletic contest; or 

(E) participating on an all-star team or in an all-star 
game that is not sanctioned by the association 
of which the student's school is a member. The 
student is ineligible only for the specific sport 
involved. 

(b) Each principal of a school which participates in 
interscholastic athletics must certify a list of eligible students for 
each sport. 

(c) Any student-athlete, coach or school official in grades 7- 
1 2 who is ejected from any athletic contest shall be penalized as 
follows: 

( 1 ) for the first offense, the person shall be reprimanded 
and suspended for the next game at that level of play 
(varsity or junior varsity) and for any intervening 
games at either level; 

(2) for a second offense, the person shall be placed on 
probation and suspended for the next two games at 
that level of play (varsity or junior varsity) and for 
any intervening games at either level. 

(3) for a third offense, the person shall be suspended for 
one calendar year. 

(4) A coach who is suspended at any level of grades 7-12 
(middle school, junior high or high school) may not 
coach in any other grade level in grades 7-12 during 
the period of suspension. 

(5) Penalties are cumulative from sport to sport and from 
sport season to sport season. If no member of the 
school'scoaching staff is present to assume an ejected 
coach's duties, the contest shall be terminated by a 
forfeit. 

(d) LEAs may allow their schools to belong to the North 
Carolina High School Athletic Association (NCHSAA), which 
has established as a minimum the rules adopted by the SBE. The 
NCHSAA may waive any eligibility requirement contained in 
this Rule, except the age requirement, if it finds that the rule fails 
to accomplish its purpose or it works an undue hardship when 
applied to a particular student. The NCHSAA may enforce 
penalties for the violation of this Rule at the high school level. 

(e) The LEA which has jurisdiction over the school may 
impose additional penalties. LEAs or conferences may adopt and 
impose penalties at the middle and junior high school levels. 

Authority G.S. ll5C-47{4). 

SUBCHAPTER 6G - EDUCATION AGENCY 
RELATIONS 

SECTION .0500 - CHARTER SCHOOLS 



1010 



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December 15, 1999 



14:12 



PROPOSED RULES 



.0502 CHARTER SCHOOL ADVISORY COM^^TTEE 

(a) The SBE shall appoint a charter school advisory 
committee of J_5 members, who shall represent the following 
categories: 

(1) charter school officials; 

(2) public school employees, at least one of whom shall 
be a teacher; 

(3) business and community leaders; 

(4) local boards of education; 

(5) the North Carolina Parents and Teachers Association; 
and 

(6) county commissioners. 

(b) The term of membership shall be two years. Each member 
shall be eligible to serve two terms. The Superintendent of 
Public Instruction shall designate the chair of the charier school 
advisory committee. 

(c) The charter school advisory committee shall advise the 
SBE on policies, procedures, and concerns that relate to the 
operation of charter schools in this State. 

(d) The charter school advisory committee shall also sit either 
as a whole or in panels designated by its chair to hear grievances 
between or among charter schools, chartering entities, and local 
boards of education. Either the charter school, its chartering 
entity, or the local board of education of the county in which the 
charter school is located may file a grievance with the charter 
school advisory committee. The grievance shall state the basis 
of the grievance and what steps the parties have taken to resolve 
the grievance. The committee or a panel of the committee shall 
investigate the grievance, provide a hearing for the parties to the 
grievance, and decide the final resolution of the grievance, 
subject to an appeal to the SBE. 

Authoriu- G.S. 115C-238.29G(b). 



making it and explain how the complaint may be made 
acceptable. 

(d) The department wtH shall send the complaint to 
appropriate staff for review and response. If the complaint 
involves a subgrantee, the department witt shall send the 
complaint to that subgrantee. 

(e) The department may. in its discretion, allow the person to 
appear and present evidence. 

(0 The department wi+l shall issue a final written resolution 
of each acceptable complaint to each party involved within 60 
days of receipt, unless exceptional circumstances require an 
extension. 

(g) The resolution i ncludes : shall include: 

( 1 ) a summary of the facts involved; 

(2) a statement of the federal requirement involved; 

(3) the department's findings of fact and a summary of 
the evidence it considered; 

(4) the departments conclusions regarding each 
allegation and a summary of its reasons for them; and 

(5) the department's order for any technical assistance, 
negotiation or corrective action that must occur and 
when those actions must be taken; and taken. 

(fr) not i ce to each p arty to their r ight to appeal the 

r esolution fo r r eview by the U.S. Department of 

Education within 30 days. 

(h) If a complaint concerns equal private school participation 

in fede r al education p rograms, the department will also follow 

the pr ocedures of P.L. 95-561. 

tr) (h) If a federal education program requires a subgrantee to 
develop and use a complaint procedure, the person complaining 
may use either that or the department's procedure. If the person 
uses the subgrantee's procedure, the person may appeal that 
decision to the department within 30 days after receiving it. 



SUBCHAPTER 6H - FEDERAL PROGRAMS 



Aiahorin G.S. 115C-U3: 34 C.F.R. 300.660-662. 



SECTION .0100 - GENERAL 

.0103 COMPLAINT PROCEDURES FOR 
FEDERAL PROGRAMS 

(a) The department wiH shall receive, review and resolve 
complaints for which no other procedures or remedies are 
available. These complaints involve the allegation that LEAs, 
another subgrantee or the department has violated a federal 
statute, regulation or interpretive rule. This Rule affects those 
federal education programs listed in 34 CFR Part 76. 

(b) Any person(s) who believes that grounds exist for filing 
a complaint under Paragraph (a) of this Rule may file a written 
complaint with the department. The complaint must: 

( 1 ) be signed by the person(s) making it; 

(2) show who has violated a specific federal requirement; 

(3) tell how the requirement has been violated; 

(4) state the facts upon which the complaint is based; and 

(5) tell what relief the person is seeking. 

f (c) If the department receives a complaint which is not 

complete or is not in proper form, it wttt shall contact the person 



.0106 NON-INSTRUCTIONAL SPECIAL 
EDUCATION SERVICES 

(a) Transportation. 
(1) LEAs shall be r esponsible for providing o r p aying 
provide or ga^ for the costs of transportation for 
children with disabilities enrolled in the schools or 
programs under their jurisdiction. Tliey in their local 
school systems and shall also be r espo n sible fo r 
pr ov i ding or paying provide or pay for the costs of 
transportation to any private residential or 
nonresidential program , public or p rivate, if the 
student has been placed in or assigned to that private 
program by the LEA. Special funds may be p r ovided 
fo r this pu r pose through the de p artment and shall be 
i n co rp o r at e d i n the g en e r al t r anspo r tation pla n of the 
LEA. Transportation funds for this purpose may be 
provided through local boards of education annual 
budget transportation allotments that are administered 
by the School Support Division of the Department. 
These funds shall be incorporated in the general 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1011 



PROPOSED RULES 



(2) 



transportation plan of each local board. For preschool 
children with disabilities, payment of these 
transportation costs must be made from either federal 
or state preschool program funds. 
If a child with disabilities is assigned to or enrolled in 
a any residential or nonresidential program operated 
by or under the jurisdiction of the Departments of 
Human Resou r ces Health and Human Services or 
Correction, the department operating the program or 
having the program under its jurisdiction or control 
over the prog r am shall be responsible for p ayi n g 
provide or ^ay the costs of transportation. This shall 
be applicable for programs for school age students 
with disabilities as well as programs for preschool 
children with disabilities. The only exception shall be 
when a child is enrolled in a LEA and is counted for 
funding purposes by the LEA, but attends a class or 
classes at a Department of Health and Human 
Services program. In this case, the LEA shall provide 
the transportation to the Department of Health and 
Human Services program and return to the LEA or 
home. 



(3) 



(4) 



The costs of transportation for a child with disabilities 
placed in or assigned to a school or program outside 
the state shall be paid by the LEA placing or 
assigning the child. 

Reimbursement for transportation costs paid for any 
one child may not exceed the Department of 
Transportation allowance per mile unless it is 
demonstrated by the child or his/her parents that this 
limitation will work a hardship or is unreasonable. 
The LEA and the appropriate state agency shall 
approve this justification, 
(b) LEAs shall determine and arrange for the provision of all 

materials, supplies and equipment essential to the instructional 

programs for children with special needs. 

Authority G.S. 115C-141. 



TITLE 19A - DEPARTMENT OF TRANSPORTATION 

Notice is hereby given in accordance with G.S. 1508-21. 2 
that the NC Department of Transportation - Division of 
Highways intends to amend the rule cited as 19A NCAC 2E 
.0602. Notice of Ride-making Proceedings was published in the 
Register on August 2, 1999. 

Proposed Effective Date: August I. 2000 

Instructions on How to Demand a Public Hearing: A 

demand for a public hearing must be made in writing and 
mailed to Emily Lee. NC Department ofTransportation. PO Box 
25201. Raleigh, NC 2761 1. The demand must be received 
within 15 days of this Notice. 



Reason for Proposed Action: Rule is proposed for amendment 

to change the vegetation clearing limits for outdoor advertising 
structures. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rule by mailing the comments 
to Emily Lee, NC DOT, PO Box 25201, Raleigh, NC 27611 by 
January 14. 2000. 



Fiscal Impact 
State Local 



Sub. 



None 



CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2E - MISCELLANEOUS 
OPERATIONS 

SECTION .0600 - SELECTIVE VEGETATION 
REMOVAL POLICY 

.0602 REQUESTS FOR PERMITS 

(a) Applications for selective vegetation thinning, pruning, or 
removal (exclusive of grasses) shall be made by the owner of the 
business or advertisement to the appropriate Division Engineer 
of the North Carolina Department ofTransportation, Division of 
Highways. A fee of two hundred dollars ($200.00) must 
accompany each application. 

(b) Selective vegetation thinning, pruning, or removal wfH 
shall be permitted only for the permittee's facilities adjacent to 
highway right of way at locations where such facilities have 
been constructed. The provisions wrH shall not be used to 
provide visibility to undeveloped property. 

(c) Applications must be accompanied by a sketch showing 
the requested limits of the selective thinning; pruning, or 
removal of vegetation. For outdoor advertising displays, these 
limits shall be restricted to a maximum of 125 feet, i n each 
direction, measured along the highway r ight of way line, from 
the center of the advertising display. Fo r comme r cial, industrial, 
institutiona l and office fac i lities, the limits of selective clearing 
o r thinning shall b e r e stric ted to the a r ea of right of way 
immediately adjacent to f r ontage pr o p e rty o f the facility, but not 
to exceed 1 .000 linear feet, cutting area for each sign face which 
shall be determined as follows: 

(1) The point located on the edge of the right of way 
which is the closest point to the center line of the sign 
face shall be point A; 

(2) The point located 100 feet down the right of way line 
in the direction of the sign viewing zone shall be point 
Bl 

(3) The point on the edge of pavement of the travelway 
(not paved shoulder) which is the closest to the center 
line of the sign shall be point C; 

(4) The point 50 feet down the edge of pavement in the 
direction of the sign viewing zone from point C shall 
be point D; 



1012 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



(5) The point 250 feet down the edge of pavement in the 
direction of the sign viewing zone from point C shall 
be point E; 

(6) Lines drawn from point A to point D and from point 
B to point E shall define the limits of the cutting area 
(see diagrams that follow as examples of the 
application of this Paragraph). 

The Department of Transportation shall determine 
compensatory tree replanting to be performed by the 
sign owner as a result of the ABED removal /.one 
versus the previous 1 25-foot rectangular zone. 
Compensatory tree planting is required to replace 
trees removed in the new portion of the ABED zone. 
This replanting shall be inch for inch based on the 
caliper inches of trees removed in the ABED zone 
which are four inches and greater measured s i^ inches 
above the ground. Location of replanting shall be 
areas of old 125-foot zone now not allowable to be 
cut by new ABED zone and locations within right of 
way on same route within one mile as designated by 
the Department Where sign faces are blocked or will 
be blocked by existing trees in the 125-foot zone the 
ABED removal zone shall not be implemented. 



For commercial, industrial, institutional and office 
facilities, the limits of selective clearing or thinning 
shall be restricted to the area of right-of-way 
immediately adjacent to frontage property of the 
facility but not to exceed 1 .000 linear feet. 

(d) Applications for permits for vegetation cutting to be 
performed on State Highway right of way must be accompanied 
by written authorization(s) by the underlying fee owner(s) of all 
property upon which cutting is to take place, provided that 
where the right of way was secured in fee simple by the 
Department, such authorization wrH shall not be required. The 
application must also be accompanied by written authorization 
of all owners of property abutting the area to be cut. 

(e) The selective vegetation control request witt shall be 
investigated on site by Maintenance and Roadside 
Environmental personnel and a representative of the applicant. 

(f) If the application for vegetation cutting is for a site located 
within the corporate limits of a City or Town, local officials wrH 
shall be given the opportunity to review the application if the 
City or Town has previously advised the Division Engineer of 
their desire to review such applications. 



Billboard 

\ 

/ 

cv A 






\ ^\,_^ mowing limits 
\ ^\, dilch line 


/» 


\n ~\ r 





\D \t 


o 


^ 50 ^ 250 .1 O 


o o 




medion 






o o 


<> o 




Clearing Limits for Outdoor Advertising Signs 
Diagram #1 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1013 



PROPOSED RULES 



Billboards 

B ' '°° A A 


'™ >B ^ 






^^ 7 




\ ""^^^^ mowing limits 
\ ^\ditch line 


C--^ r/ r 






^ D/ C 




C \D ^^ 


, <b 250 U 50 ^ 


21 2 


, 50 _^ 250 °°P <p 1 


o o 




medion 






cO. c^. 


o =& 




Clearing Limits for Outdoor Advertising Signs 
Diagram #2 










mowing limils 
'^ drteh line 



=0 



Clearing Limits for Outdoor Advertising Signs 
Diagrom #3 



1014 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



PROPOSED RULES 



Authority G.S. 136-18(5); 136-18(7): 136-18(9): 136-18.7. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 



Authority G.S. 89A-3(c): 150B-1I(1). 



CHAPTER 26 - LICENSING BOARD 
OF LANDSCAPE ARCHITECTS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the NC Board of Landscape Architects intends to 
amend rules 21 NCAC 26 .0101. .0104 - .0105 and repeal rules 
cited as 21 NCAC 26 .0302. Notice of Rule-making Proceedings 
was published in the Register on September I. 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 10:00 a.m. on Januaiy 
7. 2000 at 3733 Benson Dr. Raleigh. NC. 

Reason for Proposed Action: Location of Board office has 
changed: Temporaiy permits no longer issued as mandated by 
Session Law 1997: Late renewal penalties are confusing and 
ineffective as presently written and enforced. 

Comment Procedures: /I // interested parties are invited to send 
written comments to Robert M. Upton. Board Administrator. PO 
Bo.x 41225. Raleigh. NC 27629-1225. 



State 



Fiscal Impact 
Local Sub. 



None 



SECTION .0100 - STATUTORY AND 
ADMINISTRATIVE PROVISIONS 



.0101 



AUTHORITY: NAME AND LOCATION OF 
BOARD 

The "North Carolina Landscape Architecture Act," G.S. 89A, 
establishes and authorizes the "North Carolina Board of 
Landscape Architects," hereafter called the "board." Unless 
otherwise directed, all communications should be addressed to 
the board at Post Office Box 26852 41225 , Raleigh, North 
Carolina 2?frH- 27629 . 

Authority' G.S. 89A-3(c). 

.0104 FORMS 

Forms used by the board, and available from the board office 
upon request, include the following: 

( 1 ) Application for Registration as Landscape Architect, 

(2) Application for Corporate Certificate of Registration, 
tfV) Application fo r Tempo r ary Permit, 

t+) i3j Application for Renewal of Certificate, 

(5) (4j Application for Renewal of Corporate Certificate. 



.0105 FEES 

(a) Application fees shall be one hundred dollars ($100.00). 

(b) The Certificat e of Pe r mit fo r a tempo r ary pe r mit shall be 
one hu n d r ed fifty dolla r s ($150.00). 

tc){b) Examination fees shall be equal to the cost of 
examinations incurred by the Board, plus administrative costs , 
fou r hu n d r ed fifty dolla r s ($450.00) for a complete examinatio n , 
and shall be paid prior to the examination. 

ttH(c) Fees for portions of examinations will be based on the 
actual charges to the board for procuring, administering and 
grading the portion of the exam. The fees shall be paid prior to 
the examination. 

(c)(d) The fee for license by reciprocity shall be one hundred 
fifty dollars ($150.00). 

tf)(e) The fee for a corporate certificate of registration shall 
be two hundred dollars ($200.00). 

(-gl(f) The fee for the annual renewal of any certificate of 
registration shall be one hundred dollars ($100.00). 

tH(g) Annual renewal fees received after July I of each year 
shall be subject to a one-time late payment penalty of $50.00. 
Lapse of license renewal in excess of one year shall require an 
application reinstatement and an application fee of $100.00. the 
assessment of a late payment penalty acco r ding to the follow i ng 
sch e dule : 

HI Afte r July 1 - te n dolla r s ($10.00): 

tH Afte r September 1 - fifteen dollars ($15.00): 

t5) Afte r Octobe r 1 - twenty dollars ($20.00): 

Hi After November 1 - twenty five dollars ($25.00): 

After December 1 - thirty dollars ($30.00): 



(5t- 



t6) Afte r Ja n ua r y I - th i rty five dollars ($35.00); 

01 Afte r Feb r ua r y I - forty dollars ($40.00): 

m Aft er Ma r ch I - forty five dollars ($45.00); 

t9) Aft er Ap r il 1 - fifty dollars ($50.00). 

fH ih] The fee for re-issue of a lost or damaged certificate or 
permit is ten dollars ($10.00). 

Authority G.S. 89A-3(c): 89A-6. 

SECTION .0300 - EXAMINATION 
AND LICENSING PROCEDURES 

.0302 TEMPORARY PERMIT 

The boa r d may issue tem p o r a r y pe r mi t s pending examination. 
The b oa r d will conside r the education, t r a i ni n g and expe r ience 
of the a pp licant. No t e mpo r a r y p e r m i t will be issued or r enewed 
fo r mo r e than o n e yea r o r two examination dates, whicheve r is 
lo n ger. 

Authority G.S. 89A-3(c): 89A-4(c). 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1015 



PROPOSED RULES 



CHAPTER 36 - BOARD OF NURSING 

Notice is lierehy given in accordance with G.S. 150B-21.2 
that the North Carolina Board of Nursing intends to adopt 
the rules cited as 21 NCA C 36 .0701 -. 0705 and amend the rules 
cited as 21 NCAC 36 .0220-.0221. .0227. .0318. .0404-.0405. 
Notice of Rule-making Proceedings was published in the 
Register on October 1, 1999. 

Proposed Effective Date: July I. 2000 

A Public Hearing will be conducted at 1:00 p.m. on January 
23. 2000 at the Honiewood Suites Hotel, 5400 Edwards Mill 
Road. Raleigh. NC. 

Reason for Proposed Action: Legislation enacted in the last 
General Assembly - Article 9G: G.S. 90-171.80-90-17.94 and 
Article 9A: G.S. 90-171.43. 

Comment Procedures: Conuiients regarding tliis action should 
be directed to Jean H. Stanley, APA Coordinator, NC Board of 
Nursing. PO Bo.x 2129, Raleigh. NC 27602-2129. Comments 
must be received in the Board of Nursing office by 1:00 p.m. on 
Januan- 23. 2000. 



Fiscal Impact 
State Local 



Sub. None 
/ 



SECTION .0200 - LICENSURE 

.0220 REFRESHER COURSE 

(a) A refresher course shall he designed for those persons, 
previously licensed, who are not eligible for re-entry into 
nursing practice because their license has lapsed for five or more 
years. 

(b) Satisfactory completion of a Board-approved refresher 
course is required of the person who: 

( 1 ) requests reactivation of an inactive license and who 
has not held an active license for five ore more years; 

(2) requests reinstatement of a lapsed license and who has 
not held an active license for five or more years; 

(3) requests endorsement to North Carolina who has not 
held an active license for five or more years; 

(4) is directed by the Board to complete such a course 
when the Board takes action as authorized in G.S. 90- 1 7 1 .37; or 

(5) needs a refresher course as a result of the license 
being inactive for disciplinary action and has met all 
eligibility requirements for reinstatement of the 
license. 

Those persons identified in Subparagraph (4) and (5) of this 
Paragraph may be subject to Board-stipulated restrictions in the 
clinical component of the refresher course. 

(c) Application for approval of a refresher course shall be 



completed and submitted by the provider at least 90 days prior 
to the expected date of enrollment and shall include evidence of 
complying with the rules for refresher courses. Board approval 
shall be secured prior to the enrollment of students. Provider 
approval will be granted for a period of time not to exceed five 
years. However, any changes in faculty, curriculum, or clinical 
facilities shall be approved by the Board prior to 
implementation. 

(d) The Board will make site visits if necessary. A decision 
on an application to offer a refresher course will be given within 
30 days following receipt of the application. 

(e) The provider of a Board-approved refresher course shall 
be a Board-approved, post-secondary educational institution, a 
Board-approved health care institution, or other agency 
acceptable to the Board. 

(f) Administrative responsibility for developing and 
implementing the course shall be vested in a registered nurse 
director. 

(g) Instructors in the course shall be directly accountable to 
the nurse director. The director shall have had at least one year 
prior teaching experience preparing individuals for LPN or RN 
licensure at the post-secondary level or in a nursing staff 
development position. The director and each instructor shall: 

(1) be duly licensed hold a current North Carolina license 
to practice nursing as a registered nurse: nurse in 
North Carolina: 

(2) hold a baccalaureate or higher degree; and 

(3) have had at least two years experience in direct 
patient nursing practice as an RN. 

(h) Proximity of the instructor to students is the major factor 
in determining faculty-student ratio for clinical learning 
experiences. In no case shall this ration exceed 1:10. 

(i) Course objectives shall be stated which: 

( 1 ) show relationships between theory and practice; and 

(2) indicate behaviors consistent with the ability to safely 
practice nursing. 

(j) The curriculum for the R.N. Refresher Course shall 
incorporate: 

(1) common medical-surgical conditions and 
management of common nursing problems associated 
with these conditions, including mental health 
principles associated with management of nursing 
problems; 

(2) functions of the registered nurse as defined in G.S. 
90-171.20 and 21 NCAC 36.0221, .0224, .0225 and 
.0401; and 

(3) instruction in and opportunities to demonstrate ability 
to safely practice nursing and knowledge in caring for 
clients with common medical-surgical problems. 

(k) The curriculum for the L.P.N. Refresher Course shall 
incorporate: 

(1) common medical-surgical conditions and common 
nursing approaches to their management, including 
mental health principles; 

(2) functions of the licensed practical nurse as defined in 
G.S. 90-171.0 and 21 NCAC 36 .0221, .0225 and 
.0401; and 



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(3) instruction in and opportunity to demonstrate ability 

to safely practice nursing and knowledge in caring 

for clients with common medical-surgical problems. 

(I) The course shall include both theory and clinical 

instruction: 

(1) The R.N. Refresher Course shall include at least 240 
hours of instruction, at least 120 of which shall 
consist of clinical learning experiences. 

(2) The L.P.N. Refresher Course shall include at least 
180 hours of instruction, at least 90 of which shall 
consists of clinical learning experiences. 

(m) Evaluation processes shall be implemented which 
effectively measure; 

{ I ) knowledge and understanding of curriculum content; 

and 
(2) clarify individuals ability to provide safe nursing care 
to clients with common medical-surgical conditions. 
(n) Clinical resources shall: 

( 1 ) indicate in written contract their support and 
availability to provide the necessary clinical 
experiences; and 

(2) be approved by the Board of Nursing, 
(o) Clinical resources shall: 

( 1 ) course objectives, content outline and time allocation; 

(2) didactic and clinical learning experiences including 
teaching methodologies, for measuring the registrants 
abilities to practice nursing; 

(3) plan for evaluation of student competencies and 
ability to practice safe nursing; 

(4) a faculty list which includes the director and all 
instructors and identifies their qualifications and their 
functions in teaching roles; and 

(5) the projected clinical schedule. 

(p) A course or combination of courses within a basic nursing 
curriculum may be considered a refresher course for re-entry 
into practice if: 

(1) such course or combination of courses equals or 
exceeds requirements for refresher courses; 

(2) such course or combination of courses is taught on a 
level commensurate with level of relicensure sought; 
and 

(3) the Board designee approves such course or 
combination of courses as a substitute for a refresher 
course. 

(q) Individuals, previously licensed in North Carolina, 
presently residing outside of North Carolina, may meet these 
requirements by successfully completing a North Carolina 
approved refresher course completed in another state or country. 
Agencies desiring approval for conducting refresher courses 
shall submit applications per Paragraphs (c) through (p) or this 
Rule. Clinical experiences shall be in agencies approved by the 
comparable state/country agency to the Board of Nursing. The 
agency applying for refresher course approval shall submit 
evidence of the agency approval. 

(r) Individuals enrolled in refresher courses shall identify 
themselves as R.N. Refresher Student (RN RS) or LPN 
Refresher Student (LPN RS) consistent with the course level. 



after signatures on records or on name pins. 

(s) Upon completion of a Board-approved refresher course, 
the course provider shall furnish the Board with the names and 
North Carolina certificate numbers of those persons who have 
satisfactorily completed the course and are deemed safe to 
practice nursing at the appropriate level of licensure on the 
Board supplied form. 

(t) Upon request, the Board shall provide: 

( 1 ) a list of approved providers; 

(2) forms for applications for program approval; and 

(3) forms for verification of successful completion to all 
approved programs. 

Authority G.S. 90-17 1.23(h){3): 90-171.35: 90-171.36: 90- 
171.37:90-171.83. 

.0221 LICENSURE REQUIRED 

(a) No cap, pin, uniform, insignia or title shall be used to 
represent to the public that an unlicensed person is a registered 
nurse or a licensed practical Trarse: nurse as defined m G.S. 90- 
171.43. 

(b) The repetitive performance of a common task or 
procedure which does not require the professional judgment of 
a registered nurse or licensed practical nurse shall not be 
considered the practice of nursing for which a license is 
required. Tasks that may be delegated to the Nurse Aide I and 
Nurse Aide II shall be established by the Board of Nursing as 
defined in 21 NCAC 36.0401 and .0405. Tasks may be 
delegated to an unlicensed person which: 

( 1 ) frequently recur in the daily care of a client or group 
of clients; 

(2) are performed according to an established sequence of 
steps; 

(3) involve little or no modification from one client-care 
situation to another; 

(4) may be performed with a predictable outcome; and 

(5) do not inherently involve ongoing assessment, 
interpretation, or decision-making which cannot be 
logically separated from the procedure(s) itself. 

Client-care services which do not meet all of these criteria shall 
be performed by a duly licensed nurse. The restrictions, 
however, do no apply to care performed by clients themselves, 
their families or significant others, or by caretakers who provide 
personal care to individuals whose health care needs are 
incidental to the personal care required. 

(c) It shall be considered the practice of nursing for which a 
license is required to implement any treatment and 
pharmaceutical regimen which is likely to produce side or toxic 
effects, allergic reactions, or other unusual effects or which may 
rapidly endanger a client's life or well-being and which is 
prescribed by a person authorized by state law to prescribe such 
a regimen. 

( I ) TTie nurse who assumes responsibility for 
implementing a treatment and pharmaceutical 
Regimen shall be accountable for: 

(A) recognizing side effects; 

(B) recoenizine toxic effects; 



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PROPOSED RULES 



(C) recognizing allergic reactions; 

(D) recognizing immediate desired effects; 

(E) recognizing unusual and unexpected effects; 

(F) recognizing changes in client's condition that 
contraindicates continued administration of the 
medication; 

(G) anticipating those effects which may rapidly 
endanger a client's life or well-heing; and 

(H) making judgments and decisions concerning 
actions to take in the event such untoward 
effects occur. 
(2) Exceptions to .0221(c)(1) are: 

(A) persons who hold statutory authority to 
administer medications; 

(B) clients themselves, their families or significant 
others, or caretakers who provide personal care 
to individuals whose health care needs are 
incidental to the personal care required; 

(C) administration of oral nutritional supplements; 

(D) applications of non-systemic, topical skin 
preparations which have local effects only 
provided that ongoing, periodic assessment of 
any skin lesion present shall be carried out by 
a person licensed to make such assessments; 
and 

(E) administration of commonly used cleansing 
enema solutions or suppositories with local 
effects only. 

(d) Unlicensed nursing students enrolled in out-of-state 
nursing education programs who are requesting utilization of 
North Carolina clinical facilities, shall be allowed such 
experiences following approval by the Board of Nursing or its 
designee. Upon receiving such a request, the chief nurse 
administrator of a North Carolina clinical facility contacted by 
an out-of-state nursing education program seeking nursing 
student clinical education experiences in North Carolina shall 
provide the Board with the following at least 60 days prior to the 
start of the requested experience prior to receiving approval for 
accepting the students: 

(1) letter of request for approval to provide the clinical 
offering; 

(2) course description, which includes course objectives, 
content outline, grading criteria for the course, and 
curriculum pattern which lists all courses required and 
placement of this course in the curriculum; 

(3) names of faculty members responsible for 
coordinating the student's experiences; 

(4) documentation that the nursing program is currently 
approved by the Board of Nursing or other 
appropriate approval bodies in the state in which the 
parent institution is located; 

(5) proposed starting and completion dates for the 
requested clinical experiences; 

(6) criteria used for selection of the students for the 
clinical experience in North Carolina; 

(7) number of students to be placed in the facility; 

(8) units for placement and number of students on each 



unit; 
(9) RN faculty or preceptor qualifications criteria with 
vitae, including NC RN license numbers of those 
working with the students; the numbers of each 
faculty or preceptor's license i ssued by the North 
Carolina Board of Nursing or by the nurse licensing 
Board of a state party to the Nurse Licensure 
Compact; 

( 1 0) signed contract between nursing program and clinical 
facility indicating ration will not be greater than 1:10 
faculty to student ratio for groups of students or 1 :2 
preceptor to students if preceptor arrangement is 
proposed; 

(11) written statement from chief nursing administrator 
indicating the proposed clinical experience does not 
conflict with clinical unit commitment to approved 
North Carolina nursing programs who have contracts 
with the facility; 

(12) evidence that all students involved in the proposed 
clinical experience are in good academic standing; 
and 

(13) plans that ensure timely communications between the 
coordinating faculty from out-of-state program, the 
participating NC nurses, the chief nursing 
administrator of the NC clinical facility and the 
students. 

(e) If the approved experience is to continue on an annual 
basis, written notification shall be submitted annually, by the 
chief nurse administrator of the NC facility at least thirty 30 
days prior to the resumption of the experiences. This notice 
shall include notification of any changes in the information 
submitted in material required in Paragraph (d) of this Rule. 
Upon review by the Board or its designee, written approval shall 
be sent to the Chief Nursing administrator of the NC facility and 
the out-of-state nursing program, within thirty 30 business days 
of receipt of the materials in the Board office. Copies of the 
following shall be distributed by the chief nursing administrator 
of the clinical facility to all students and faculty involved in the 
clinical experiences: 

( 1 ) North Carolina Nursing Practice Act; 

(2) North Carolina administrative rules and related 
interpretations regarding the role of the RN, LPN, and 
unlicensed nursing personnel; 

(3) North Carolina Board developed Guidelines for 
Utilization of Preceptors; and 

(4) North Carolina Board of Nursing developed 
Interpretations According to Adopted Categories. 

(f) Failure to comply with the requirements in Paragraph (d) 
of this Rule as established by the North Carolina Board of 
Nursing shall result in the immediate withdrawal of the Board's 
approval of the clinical offerings. 

AiitIumn'G.S.90-171.23(b): 90-171.39: 90-171.43: 90-171.83. 

.0227 APPROVAL AND PRACTICE PARAMETERS 
FOR NURSE PRACTITIONERS 

(a) Definitions: 



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( 1 ) "Medical Board" means the North Carolina Medical 
Board. 

(2) "Board of Nursing" means the Board of Nursing of 
the State of North Carolina. 

(3) "Joint Subcommittee" means the subcommittee 
composed of members of the Board of Nursing and 
Members of the Medical Board to whom 
responsibility is given by G.S. 90-6 and G. S. 90- 
I7l.23(b)(14) to develop rules to govern the 
performance of medical acts by nurse practitioners in 
North Carolina. 

(4) "Nurse Practitioner or NP" means a currently licensed 
registered nurse approved to perform medical acts 
under an agreement with a licensed physician for 
ongoing supervision, consultation, collaboration and 
evaluation of the medical acts performed. Only a 
registered nurse approved by the Medical Board and 
the Board of Nursing may legally identify oneself as 
a Nurse Practitioner. It is understood that the nurse 
practitioner, by virtue of RN licensure, is 
independently accountable for those nursing acts 
which he or she may perform. 

(5) "Nurse Practitioner Applicant" means a registered 
nurse who may function prior to full approval as a 
Nurse Practitioner in accordance with Part (c)(2)(D) 
of this Rule. 

(6) "Supervision" means the physician's function of 
overseeing medical acts performed by the nurse 
practitioner. 

(7) "Collaborative practice agreement" means the 
arrangement for nurse practitioner-physician 
continuous availability to each other for on-going 
supervision, consultation, collaboration, referral and 
evaluation of care provided by the nurse practitioner. 

(8) "Primary Supervising Physician" means the licensed 
physician who, by signing the nurse practitioner 
application, is held accountable for the on-going 
supervision, consultation, collaboration and 
evaluation of the medical acts performed by the nurse 
practitioner as defined in the site specific written 
protocols. 

(A) The primary supervising physician shall 
assume the responsibility of assuring the 
Boards that the nurse practitioner is qualified 
to perform those medical acts described in the 
site specific written protocols. 

(B) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a primary supervising physician. 

(C) A physician in a graduate medical education 
program who is also practicing in a non- 
training situation may supervise a nurse 
practitioner in the non-training situation if fully 
licensed 

(9) "Back-up Supervising Physician" means the licensed 
physician who, by signing an agreement with the 



nurse practitioner and the primary supervising 
physician(s) shall be held accountable for the 
supervision, consultation, collaboration and 
evaluation of medical acts by the nurse practitioner in 
accordance with the site specific written protocols 
when the Primary Supervising Physician is not 
available. 

(A) The signed and dated agreements for each 
back-up supervising physician(s) shall be 
maintained at each practice site. 

(B) A physician in a graduate medical education 
program, whether fully licensed or holding 
only a resident's training license, shall not be 
named as a back-up supervising physician. 

(C) A physician in a graduate medical education 
program who is also practicing in a nontraining 
situation may be a back-up supervising 
physician to a nurse practitioner in the non- 
training situation if fully licensed and has 
signed an agreement with the nurse practitioner 
and the primary supervising physician. 

(10) "Approval" means authorization by the Medical 
Board and the Board of Nursing for a registered nurse 
to practice as a nurse practitioner in accordance with 
this Subchapter. 

(11) "Written protocols" means the signed and dated set of 
written practice guidelines maintained at each practice 
site which describe the prescribing privileges, 
treatments, tests and procedures that define the scope 
of the nurse practitioner's medical acts in that setting. 
Clinical practice issues that are not covered by the 
written protocols require nurse practitioner/physician 
consultation, and documentation related to the 
treatment plan. 

(12) "Volunteer practice" means practice without 
expectation of compensation or payment (monetary, 
in kind or otherwise) to the nurse practitioner either 
directly or indirectly. 

(13) "Disaster" means a state of disaster as defined in G.S. 
1 66A-4(3) and proclaimed by the Governor, or by the 
General Assembly pursuant to G.S. 166A-6. 

(14) "Interim Status" means the privilege granted by the 
Boards to a graduate of an approved nurse practitioner 
education program or a registered nurse seeking initial 
approval in North Carolina with limited privileges, as 
defined in Part (c)(2)(D) of this Rule while awaiting 
final approval to practice as a nurse practitioner. 

(15) "Temporary Approval" means authorization by the 
Medical Board and the Board of Nursing for a 
registered nurse to practice as a nurse practitioner in 
accordance with this Rule for a period not to exceed 
18 months while awaiting notification of successful 
completion of the national certification examination. 

(16) "National Credentialing Body" means one of the 
following credentialing bodies that offers certification 
and re-certification in the nurse practitioner's 
specialty area of practice; American Nurses 



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PROPOSED RULES 



Credentialing Center (ANCC); American Academy of 
Nurse Practitioners (AANP); National Certification 
Corporation of tiie Obstetric, Gynecologic and 
Neonatal Nursing Specialties (NCC); and the National 
Certification Board of Pediatric Nurse Practitioners 
and Nurses (PNP/N). 

(b) Scope of Practice. The nurse practitioner shall be 
responsible and accountable for the continuous and 
comprehensive management of a broad range of personal health 
services for which the nurse practitioner shall be educationally 
prepared and for which competency has been maintained, with 
physician supervision and collaboration as described in 
Paragraph (i) of this Rule. These services include but are not 
restricted to: 

( 1 ) promotion and maintenance of health; 

(2) prevention of illness and disability; 

(3) diagnosing, treating and managing acute and chronic 
illnesses; 

(4) guidance and counseling for both individuals and 
families; 

(5 ) prescribing, administering and dispensing therapeutic 
measures, tests, procedures and drugs; 

(6) planning for situations beyond the nurse practitioner's 
expertise, and consulting with and referring to other 
health care providers as appropriate; and 

(7) evaluating health outcomes. 

(c) Nurse Practitioner Approval. 

(1) Qualifications for nurse practitioner approval. A 
registered nurse shall be approved by the Medical 
Board and the Board of Nursing before the applicant 
may practice as a nurse practitioner. The Boards may 
grant approval to practice as a nurse practitioner to an 
applicant who: 

(A) is cu rr ently duly licensed to practice as a 
registered nurse by the Board of Nu r si n g; in 
North Carolina; 

(B) has successfully completed an approved 
educational program as outlined in Paragraph 
(d) of this Rule; or, as of January 1, 2000, 
meets the certification requirements set forth in 
Subparagraph (d)(2) of this Rule; 

(C) has an unrestricted license to practice as a 
registered nurse and, if applicable, an 
unrestricted approval to practice as a nurse 
practitioner unless the Boards consider such 
condition and agree to approval; 

(D) submits any information deemed necessary to 
evaluate the application; 

(E) has a collaborative practice agreement with a 
primary supervising physicians; and 

(F) pays the appropriate fee. 

(2) Application for nurse practitioner approval. 

(A) Application for nurse practitioner approval 
shall be made upon the appropriate forms and 
shall be submitted jointly by the nurse 
practitioner and primary supervising 
physician(s). 



(B) Applications for first-time approval in North 
Carolina shall be submitted to the Board of 
Nursing and then approved by both Boards as 
follows: 

(i) the Board of Nursing will verify 

compliance with Parts (c)( 1 )(A) - (D) of 

this Rule; 
(ii) the Medical Board will verify 

compliance with Parts (c)( 1 )(D) - (F) of 

this Rule; and 
(iii) the appropriate Board will notify 

applicant of final approval status. 

(C) Applications for approval of changes in 
practice arrangements for a nurse practitioner 
currently approved to practice in North 
Carolina: 

(i) addition or change of primary 

supervising physician shall be submitted 

to the Medical Board; 
(ii) request for change(s) in the scope of 

practice shall be submitted to the Joint 

Subcommittee; and 
(iii) the appropriate Board will notify 

applicant of final approval status. 

(D) Interim status for nurse practitioner applicant 
may be granted to: a registered nurse who is a 
new graduate of an approved nurse practitioner 
educational program as set forth in Paragraph 
(d) of this Rule; or a registered nurse seeking 
first time approval to practice as a nurse 
practitioner in North Carolina who has worked 
previously as a nurse practitioner in another 
state and who meets the nurse practitioner 
educational requirement as set forth in 
Paragraph (d) of this Rule with the following 
limitations: 

(i) no prescribing privileges; 

(ii) primary or back-up physicians shall be 
continuously available for appropriate 
ongoing supervision, consultation, 
collaboration and countersigning of 
notations of medical acts in all patient 
charts within two working days of nurse 
practitioner applicant-patient contact; 
(iii) face-to-face consultation with the 
primary supervising physician shall be 
weekly with documentation of 
consultation consistent with Part 
(i)(4)(D) of this Rule; and 

(iv) may not exceed period of six months. 

(E) Beginning January I, 2000, first time 
applicants who meet the qualifications for 
approval, but are awaiting certification from a 
national credentialing body approved by the 
Board of Nursing, may be granted a temporary 
approval to practice as a nurse practitioner. 
Temporary approval is valid for a period not to 



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PROPOSED RULES 



exceed 18 months from the date temporary 
approval is granted or until the results of the 
applicant's certification examination are 
available, whichever comes first. 

(F) The registered nurse who was previously 
approved to practice as a nurse practitioner in 
this state shall: 

(i) meet the nurse practitioner approval 
requirements as stipulated in Parts 
(c)( 1 )( A), (C) -(F) of this Paragraph; 
(ii) complete the appropriate application; 
(iii) receive notification of approval; and 
(iv) meet the consultation requirements as 
outlined in Parts (i)(4)(C) - (D) of this 
Rule. 

(G) If for any reason a nurse practitioner 
discontinues working within the approved 
nurse practitioner-supervising physician(s) 
arrangement, the Boards shall be notified in 
writing and the nurse practitioner's approval 
shall automatically terminate or be placed on 
an inactive status until such time as a new 
application is approved in accordance with this 
Subchapter. Special consideration may be 
given in an emergency situation. 

(H) Volunteer Approval for Nurse Practitioners. 
The Boards may grant approval to practice in 
a volunteer capacity to a nurse practitioner who 
has met the qualifications as outlined in Parts 
(c)( 1 )( A) - (F) and (2)( A) - (G) of this Rule 
(d) Requirements for Approval of Nurse Practitioner 
Educational Programs 

( 1 ) A Nurse Practioner applicant who completed a nurse 
practitioner educational program prior to December 
31, 1999 shall provide evidence of successful 
completion of a course of formal education which 
contains a core curriculum including 400 contact 
hours of didactic education and 400 contact hours of 
preceptorship or supervised clinical experience. 
(A) The core curriculum shall contain as a 
minimum the following components: 
(i) health assessment and diagnostic 
reasoning including: 
(I) historical data; 
(II) physical examination data; 
(III) organization of data base; 
(ii) pharmacology; 
(iii) pathophysiology; 
(iv) clinical management of common health 
care problems and diseases related to: 
(I) respiratory system; 
(II) cardiovascular system; 

(III) gastrointestinal system; 

(IV) genitourinary system; 
(V) integumentary system; 

(VI) hematologic and immune 
systems; 



(VII) endocrine system; 
(VIII) musculoskeletal system; 
(IX) infectious diseases; 
(X) nervous system; 
(XI) behavioral, mental health and 
substance abuse problems; 
(v) clinical preventative services including 
health promotion and prevention of 
disease; 
(vi) client education related to Parts 
(d)( 1 )(A)(iv) and (V) of this Rule; and 
(vii) role development including legal, 
ethical, economical, health policy and 
interdisciplinary collaboration issues. 
(B) Nurse practitioner applicants who may be 
exempt from components of the core 
curriculum requirements listed in Part 
(d)(1)(A) of this Rule are: 
(i) Any nurse practitioner approved in 
North Carolina prior to January 18, 
1981, is permanently exempt from the 
core curriculum requirement, 
(ii) A nurse practitioner certified by a 
national credentialing body who also 
provides evidence of satisfying Parts 
(d)(l)(A)(i) - (iii) of this Rule shall be 
exempt from core curriculum 
requirements in Parts (d)(l)(A)(iv) - 
(vii) of this Rule. Evidence of 
satisfying Parts (d)( 1 )(A)(i) - (iii) of this 
Rule shall include, but may not be 
limited to: 

(I) a narrative of course content; and 

(II) contact hours. 

(iii) A nurse practitioner seeking initial 

approval after January 1, 1998 shall be 

exempt from the core curriculum 

requirements if certified as a nurse 

practitioner in his/her specialty by a 

national credentialing body when initial 

certification was obtained after January 

1, 1998. 

(iv) A nurse practitioner applicant, whose 

formal education does not meet all of 

the stipulations in Subparagraph (d)(1) 

of this Rule, may appeal to the Joint 

Subcommittee on the basis of other 

education and experience. 

(2) Instead of educational program approval, all nurse 

practitioner applicants who are applying for or have 

received, first time approval to practice as a nurse 

practitioner on or after January 1, 2000 shall be 

certified by a national credentialing body approved by 

the Board of Nursing or be awaiting initial 

certification by a national credentialing body 

approved by the Board of Nursing for a period not to 

exceed 18 months from date temporary approval is 



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1021 



PROPOSED RULES 



granted. 

(e) Annual Renewal. 

(1) Each registered nurse who is approved as a nurse 
practitioner in this state shall annually renew each 
approval with the Medical Board no later than 30 days 
after the nurse practitioner's birthday by: 

(A) Verifying current RN licensure; 

(B) Submitting the fee required in Paragraph (1) of 
this Rule; and 

(C) Completing the renewal form. 

(2) For the nurse practitioner who had first time approval 
to practice after January 1, 2000, provide evidence of 
certification or recertification by a national 
credentialing body. 

(3) If the nurse practitioner has not renewed within 60 
days of the nurse practitioner's birthday, the approval 
to practice as a nurse practitioner will lapse. 

(f) Continuing Education (CE). In order to maintain nurse 
practitioner approval to practice beginning no sooner than two 
years after initial approval has been granted, the nurse 
practitioner shall earn 30 hours of continuing education every 
two years. At least three hours of continuing education every 
two years shall be the study of the medical and social effects of 
substance abuse including abuse of prescription drugs, 
controlled substances, and illicit drugs. Continuing Education 
hours are those hours for which approval has been granted by 
the American Nurses Credentialing Center (ANCC) or 
Accreditation Council on Continuing Medical Education 
(ACCME) or other national credentialing bodies. 
Documentation shall be maintained by the nurse practitioner at 
each practice site and made available upon request to either 
Board. 

(g) Inactive Status. 

( 1 ) Any nurse practitioner who wishes to place his or her 
approval on an inactive status may notify the Boards 
by completing the form supplied by the Boards; 

(2) The registered nurse with inactive nurse practitioner 
status shall not practice as a nurse practitioner; 

(3) The registered nurse with inactive nurse practitioner 
status who reapplies for approval to practice shall be 
required to meet the qualifications for approval as 
stipulated in Parts (c)( 1 )(A), (c)( 1 )(C) - (F) and Part 
(c)(2)(A) of this Rule. Rule; and shall provide 
documentation to the Boards of 30 contact hours of 
practice relevant continuing education during the 
preceding two years. 

(h) Prescribing Authority. 

(1) the The prescribing stipulations contained in this 
Paragraph apply to writing prescriptions and ordering 
the administration of medications; 

( 2 ) Prescribing and dispensing stipulations are as follows: 

(A) Drugs and devices that may be prescribed by 
the nurse practitioner in each practice site shall 
be included in the written protocols as outlined 
in Paragraph (i). Subparagraph (2) of this Rule. 

(B) Controlled Substances (Schedules 2, 2N, 3, 
3N, 4, 5) defined by the State and Federal 



Controlled Substances Acts may be procured, 
prescribed or ordered as established in written 
protocols, providing all of the following 
requirements are met: 
(i) the nurse practitioner has an assigned 

DEA number which is entered on each 

prescription for a controlled substance; 
(ii) dosage units for schedules 2, 2N, 3 and 

3N are limited to a 30 day supply; and 
(iii) the prescription or order for schedules 2, 

2N, 3 and 3N may not be refilled. 

(C) The nurse practitioner may prescribe a drug not 
included in the site-specific written protocols 
only as follows: 

(i) upon a specific written or verbal order 
obtained from a primary or back-up 
supervising physician before the 
prescription or order is issued by the 
nurse practitioner; and 
(ii) the verbal or written order as described 
in Subpart (h)(2)(C)(i) of this Rule shall 
be entered into the patient record with a 
notation that it is issued on the specific 
order of a primary or back-up 
supervising physician and signed by the 
nurse practitioner and the physician. 

(D) Refills may be issued for a period not to 
exceed one year except for schedules 2, 2N, 3 
and 3N controlled substances which may not 
be refilled. 

(E) Each prescription shall be noted on the 
patient's chart and include the following 
information: 

(i) medication and dosage; 
(ii) amount prescribed; 
(iii) directions for use; 
(iv) number of refills; and 

(v) signature of nurse practitioner. 

(F) The prescribing number assigned by the 
Medical Board to the nurse practitioner shall 
appear on all prescriptions issued by the nurse 
practitioner. 

(G) Prescription Format: 

(i) all prescriptions issued by the nurse 

practitioner shall contain the supervising 

physician(s) name, the name of the 

patient, and the nurse practitioner's 

name, telephone number, and 

prescribing number; 

(ii) the nurse practitioner's assigned DEA 

number shall be written on the 

prescription form when a controlled 

substance is prescribed as defined in 

Paragraph (h) Part (B) of this Rule; and 

(3) The nurse practitioner may obtain approval to 

dispense the drugs and devices included in the written 

protocols for each practice site from the Board of 



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December 15, 1999 



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PROPOSED RULES 



Pharmacy, and dispense in accordance with 2 1 NCAC 
46 .1700, which is hereby incorporated by reference 
including subsequent amendments of the referenced 
materials. 
(i) Quality Assurance standards for a Collaborative Practice 
Agreement. 

(1) Availability: The primary or back-up supervising 
physician(s) and the nurse practitioner shall be 
continuously available to each other for consultation 
by direct communication or telecommunication. 

(2) Written Protocols: 

(A) Written protocols shall be agreed upon and 
signed by both the primary supervising 
physician and the nurse practitioner, and 
maintained in each practice site. 

(B) Written protocols shall be reviewed at least 
yearly, and this review shall be acknowledged 
by a dated signature sheet, signed by both the 
primary supervising physician and the nurse 
practitioner, appended to the written protocol 
and available for inspection by members or 
agents of either bo a r d. Board. 

(C) The written protocols shall include the drugs, 
devices, medical treatment, tests and 
procedures that may be prescribed, ordered and 
implemented by the nurse practitioner 
consistent with Paragraph (h) of this Rule, and 
which are appropriate for the diagnosis and 
treatment of the most commonly encountered 
health problems in that practice setting. 

(D) The written protocols shall include a pre- 
determined plan for emergency services. 

(E) The nurse practitioner shall be prepared to 
demonstrate the ability to perform medical acts 
as outlined in the written protocols upon 
request by members or agents of either Board. 

(3) Quality Improvement Process. 

(A) The primary supervising physician and the 
nurse practitioner shall develop a process for 
the on-going review of the care provided in 
each practice site to include a written plan for 
evaluating the quality of care provided for one 
or more frequently encountered clinical 
problems; and 

(B) This plan shall include a description of the 
clinical problem(s), an evaluation of the current 
treatment interventions, and if needed, a plan 
for improving outcomes within an identified 
time- frame; 

(C) The quality improvement process shall include 
scheduled meetings between the primary 
supervising physician and the nurse 
practitioner at least every six months. 
Documentation for each meeting shall: 

(i) identify clinical problems discussed, 
including progress toward improving 
outcomes as stated in Part (i)(3)tB) of 



this Rule, and recommendations, if any, 
for changes in treatment plan(s); 
(ii) be signed and dated by those who 

attended; and 
(iii) be available for review by members or 
agents of either Board for the previous 
five calendar years and be retained by 
both the nurse practitioner and 
physician. 
(4) Nurse Practitioner-Physician Consultation. The 
following requirements establish the minimum 
standards for consultation between the nurse 
practitioner/primary or back-up supervising 
physician(s); 

(A) The nurse practitioner with temporary approval 
shall have: 

(i) review and countersigning of notations 
of medical acts by a primary or back-up 
supervising physician within seven days 
of nurse practitioner-patient contact for 
the first six months of collaborative 
agreement. This time-frame includes the 
period of interim status. 

(ii) face-to-face consultation with the 
primary supervising physician on a 
weekly basis for one month after 
temporary approval is achieved and at 
least monthly throughout the period of 
temporary approval. 

(B) The nurse practitioner with first time approval 
to practice shall have: 

(i) review and countersigning of notations 
of medical acts by a primary or back-up 
supervising physician within seven days 
of nurse practitioner-patient contact for 
the first six months of collaborative 
agreement. This time-frame includes 
the period of interim status. 

(ii) face-to-face consultation with the 
primary supervising physician on a 
weekly basis for one month after full 
approval is received and at least 
monthly for a period no less than the 
succeeding five months. 

(C) The nurse practitioner previously approved to 
practice in North Carolina who changes 
primary supervising physician shall have face- 
to-face consultation with the primary 
supervising physician weekly for one month 
and then monthly for the succeeding five 
months. 

( D) Documentation of consultation shall: 

(i) identify clinical issues discussed and 

actions taken; 
(ii) be signed and dated by those who 

attended; and 
(iii) be available for review by members or 



14:12 



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December 15, 1999 



1023 



PROPOSED RULES 



agents of either Board for the previous 

five calendar years and be retained by 

both the nurse practitioner and 

physician. 

(j) Method of Identification. The nurse practitioner shall 

wear an appropriate name tag spelling out the words "Nurse 

Practitioner." 

(k) Disciplinary Action. The approval of a nurse practitioner 
may be restricted, denied or terminated by the Medical Board 
and the registered nurse license may be restricted, denied, or 
terminated by the Board of Nursing, if after due notice and 
hearing in accordance with provisions of Article 3A of G.S. 
I50B, the appropriate Board shall find one or more of the 
following: 

( 1 ) that the nurse practitioner has held himself or herself 
out or permitted another to represent the nurse 
practitioner as a licensed physician; 

( 2 ) that the nurse practitioner has engaged or attempted to 
engage in the performance of medical acts other than 
according to the written protocols and collaborative 
practice agreement; 

(3) that the nurse practitioner has been convicted in any 
court of a criminal offense; 

(4) that the nurse practitioner is adjudicated mentally 
incompetent or that the nurse practitioner's mental or 
physical condition renders the nurse practitioner 
unable to safely function as a nurse practitioner; or 

(5) that the nurse practitioner has failed to comply with 
any of the provisions of this Rule. 

(1) Fees: 

( 1 ) An application fee of one hundred dollars ($100.00) 
shall be paid at the time of initial application for 
approval and each subsequent application for 
approval to practice. All initial, subsequent and 
volunteer application fees shall be equally divided 
between the Board of Nursing and the Medical Board. 
No other fees are shared. Application fee shall be 
twenty dollars ($20.00) for volunteer approval. 

(2) The fee for annual renewal of approval shall be fifty 
dollars ($50.00). 

(3) The fee for annual renewal of volunteer approval, 
shall be ten dollars ($10.00). 

(4) No portion of any fee in this Rule is refundable, 
(m) Practice During a Disaster. A nurse practitioner 

approved to practice in this State or another state is authorized 
to perform medical acts, tasks, or functions as a nurse 
practitioner under the supervision of a physician licensed to 
practice medicine in North Carolina during a disaster with a 
county in which a state of disaster has been declared or counties 
contiguous to a county in which a state of disaster has been 
declared. The nurse practitioner shall notify the Boards in 
writing of the names, practice locations and telephone numbers 
for the nurse practitioner and each primary supervising physician 
within 15 days of the first performance of medical acts, tasks, or 
functions as a nurse practitioner during the disaster. Teams of 
physician(s) and nurse practitioner(s) practicing pursuant to this 
Rule shall not be required to maintain on-site documentation 



describing supervisory arrangements and instructions for 
prescriptive authority as otherwise required pursuant to 
Paragraphs (h) and (i) of this Rule. 

Authority G.S. 90-6: 90-l8{c)(13).(M}: 90-18.2: 90-171.20(4): 
90-171.20(7): 90-171.23(b): 90-171.36: 90-171.37: 90-171.42: 
90-171.83. 

SECTION .0300 - APPROVAL OF NURSING 
PROGRAMS 

.0318 FACULTY 

(a) Both full-time and part-time faculty members shall be 
considered nursing program faculty. When part-time faculty are 
utilized, evidence shall exist of their participation in curriculum 
implementation and evaluation. 

(b) Policies for nursing program faculty members shall reflect 
those of the institution; however, variations in these policies may 
be necessary because of the nature of the nursing curriculum. 

(c) Qualifications for nurse faculty members shall be stated 
and reflect knowledge and experiences in clinical nursing and 
teaching which are appropriate for assigned responsibilities. 

(d) Faculty members who teach non-nursing courses required 
in the nursing curriculum shall have appropriate academic and 
experiential qualifications for the program areas in which they 
participate. 

(e) Each nurse faculty member shall hold a current 
unrestricted license to practice as a registered nurse in North 
Carolina. The program director shall be held accountable for 
validating and documenting current registered nurse licensure to 
practice as a registered nurse in North Carolina. 

(f) Each nurse faculty member shall hold a baccalaureate in 
nursing or a baccalaureate with a major in nursing. Exceptions 
are: 

( 1 ) the individual who holds a master's degree in nursing 
and a baccalaureate in another discipline; 

(2) the individual employed as a faculty member prior to 
January 1 , 1 998, who holds a baccalaureate in another 
discipline. This exception applies to continuing 
employment in the current setting. 

(g) Each nurse faculty member employed after January 1, 
1 984, shall have had a minimum of two years prior employment 
in direct patient care. Each nurse faculty member employed 
afier January 1, 1998, shall have had a minimum of two year's 
prior employment in direct patient care as a registered nurse. 
Each nurse faculty member employed after July 1, 1992, shall 
have had a minimum of two calendar year's prior full-time 
employment or the equivalent in clinical nursing practice as a 
registered nurse. 

(h) In addition to all qualifications for nurse faculty members, 
the nurse director of a practical nurse education program 
employed as such after January I, 1984, shall have had at least 
two year's full-time experience teaching in nursing program(s). 

(i) In addition to all qualifications for nurse faculty member, 
the nurse director of a program preparing individuals for 
registered nurse practice shall hold a baccalaureate and a 
master's degree, one of which shall be in nursing; and if 



1024 



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December 15, 1999 



14:12 



PROPOSED RULES 



employed after January I, 1984, shall have had at least two 
year's full-time experience teaching at or above the academic 
level of the program. For purposes of this standard, associate 
degree and diploma nursing program levels are considered 
comparable. 

(j) In addition to all qualifications for nurse faculty members, 
the nurse faculty member in a program preparing individuals for 
registered nurse practice who has primary responsibility, 
designated by the program, for coordinating the planning, 
implementation, and evaluation, of each major clinical nursing 
course shall hold a master's degree. This nurse faculty member 
shall also have had a minimum of one academic year of full-time 
teaching experience in a nursing program. 

(k) In addition to all qualifications for nurse faculty members, 
the nurse faculty member in a program preparing individuals for 
practical nurse licensure who has primary responsibility, 
designated by the program, for coordinating the planning, 
implementation and evaluation of each major clinical nursing 
course, shall have had a minimum of one academic year of full- 
time teaching experience in a nursing program. 

(1) The nurse faculty members shall have the appropriate 
authority and responsibility for: 

(1) student admission, progression, and graduation 
requirements; and 

(2) the development, implementation, and evaluation of 
the curriculum. 

(m) The nurse faculty members shall be sufficient in number 
to implement the curriculum as demanded by the course 
objectives, the levels of the students, and the nature of the 
learning environment. The faculty-student ratio in clinical areas 
shall depend upon the level of students, the acuity of patients, 
and the average daily census in the unit, the ratio shall be 1:10 
or less. Request to exceed the 1:10 ratio shall be submitted to 
the Board or its' designated representatives for approval prior to 
implementation. Request may be approved for one academic 
term only. 

(n) There shall be written annual evaluation of each nurse 
faculty member by the program director or a designee; and 
evidence of written evaluation of the program director by an 
immediate supervisor according to the institutional policy. 

Authority G.S. 90-17I.23(b)(8j; 90-171.38; 90-171.83. 

SECTION .0400 - UNLICENSED PERSONNEL: 
NURSE AIDES 

.0404 LISTING AND RENEWAL 

(a) All nurse aide II's, as defined in Rule .0403(b) of this 
Sectiion, Section, regardless of working title, employed or 
assigned in a service agency or facility for the purpose of 
providing nursing care activities shall be listed on the Board of 
Nursing Nurse Aide II Registry and shall meet the following 
requirements; 

( 1 ) successful completion of a nurse aide II program or 
its Board approved equivalent; 

(2) listed as a Level I nurse aide on the DFS Nurse Aide 
Registry with no substantiated findings of abuse. 



neglect, or misappropriation of property; and 
(3) submission of an application to the Board of Nursing 
for placement on the Board of Nursing Nurse Aide 11 
Registry prior to working as a nurse aide II. 
The application shall be submitted with the required fee within 
30 days of completion of the nurse aide II program. Application 
for initial listing received in the Board office between April and 
June shall show an expiration day of June 30 of the following 
year. 

(b) Nursing students currently enrolled in Board of Nursing 
approved nursing programs desiring listing as a nurse aide li 
shall submit: 

( 1 ) An application with fee; and 

(2) A listing form completed by the nursing program 
director indicating successful completion of course 
work equivalent in content and clinical hours to that 
required for a nurse aide II. 

(c) Registered nurses and licensed practical nurses who hold 
current, unrestricted licenses in North Carolina, and registered 
nurses and licensed practical nurses in the discipline process by 
the Board of Nursing who have been granted approval by the 
Board of Nursing or its designee may make application as a 
nurse aide II. 

(d) An individual previously enrolled in a Board approved 
nursing program leading to licensure as RN or LPN may list 
with no additional testing provided the student withdrew from 
school in good standing within the last 24 months and completed 
the equivalent content and clinical hours. Such individual shall 
submit listing form as described in Paragraph (b)(2) of this Rule. 
If the student was in good standing upon withdrawal from the 
school and withdrew from the school in excess of 24 months, the 
student must complete entire nurse aide II program. 

(e) Individuals who have completed a training course 
equivalent in content and clinical hours to the nurse aide II 
program, may submit documentation of same to the Board of 
Nursing for review. If training is equivalent, the individual may 
submit the applicafion with required fee and be listed on the 
Board of Nursing Nurse Aide Registry as a nurse aide II. 

(f) An employing agency or facility may choose up to four 
nurse aide II tasks to be performed by nursing aide I personnel 
without the nurse aide I completing the entire nurse aide II 
program. These tasks are individual activities which may be 
performed after the nurse aide has receive d the approved 
training and competency evaluation as defined in Rule .0403(b) 
of this Section. 

( 1 ) The agency may obtain the selected tasks curriculum 
model from the nearest Community College or the 
Board of Nursing or may submit a self generated 
curriculum to the Board for approval. Board approval 
must be obtained prior to teaching the nurse aide II 
tasks. 

(2) Once approval has been obtained, the Board of 
Nursing must be notified of the nurse aide II task(s) 
that will be performed by nurse aide I personnel in the 
agency and for which all Board stipulations have been 
met. The notification of nurse aide II task(s) form 
which may be requested from the Board office shall 



14:12 



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December 15, 1999 



1025 



PROPOSED RULES 



be used. Each agency shall receive a verification 

letter once the Board has been appropriately notified. 

(3) Documentation of the training and competency 

evaluation must be maintained for each nurse aide I 

who is approved to perform nurse aide II taslc(s) 

within the agency. 

(g) Each nurse aide II shall renew listing with the Board of 

Nursing biennially on forms provided by the Board. The 

renewal application shall be accompanied by the required fee. 

( 1 ) To be eligible for renewal, the nurse aide II must have 
worked at least eight hours for compensation during 
the past 24 months performing nursing care activities 
under the supervision of a Registered Nurse. 

(2) Any nurse aide II who has had a continuous period of 
24 months during which no nursing care activities 
were performed for monetary compensation but who 
has performed patient care activities for monetary 
compensation shall successfully complete the 
competency evaluation portion of the nurse aide II 
program and submit application in order to be placed 
on the Board of Nursing Nurse Aide II Registry. 

(3) A nurse aide II who has performed no nursing care or 
patient care activities for monetary compensation 
within the past 24 months must successfully complete 
a nurse aide II program prior to submitting the 
application for renewal. 

(4) Failu r e to r enew listing card by expi r ation date may 
r esult in a reinstatement penalty. 

(4] (5) A nurse aide II who has substantiated findings of 
abuse, neglect, or misappropriation of funds of the 
DPS Nurse Aide Registry shall not be eligible for 
renewal as a nurse aide II. 

Authority G.S. 90-171.19: 90-171. 20(2)(4)(7jd..e..g.; 90- 
171.43(4); 90-171.55: 90-171.83: 42 U.S.C.S. 13951-3(1987). 

.0405 APPROVAL OF NURSE AIDE EDUCATION 
PROGRAMS 

(a) The Board of Nursing shall accept those programs 
approved by DPS to prepare the nurse aide I. 

(b) The North Carolina Board of Nursing shall approve nurse 
aide II programs. Nurse aide II programs may he offered by an 
individual, agency, or educational institution after the program 
is approved by the Board. 

( 1 ) Each entity desiring to offer a nurse aide II program 
shall submit a program approval application at least 
60 days prior to offering the program. It shall include 
documentation of the following standards: 

(A) policy established which provides for 
supervised clinical experience with 
faculty/student ratio not to exceed 1:10; 

(B) Board of Nursing approval of each clinical 
facility for student use as defined in 21 NCAC 
36.0322(b); 

(C) a written contract between the program and 
clinical facility prior to admitting students to 
the facility for clinical experience; 



(D) admission requirements which include: 

(i) successful completion of nurse aide I 
training program or Board of Nursing 
established equivalent and current nurse 
aide I listing on DPS Registry; and 
(ii) GEO or high school diploma; and 
(iii) other admission requirements as 
identified by the program; and 

(E) policy regarding the processing and disposition 
of program and student complaints. 

(2) Level II nurse aide programs shall include a minimum 
of 80 hours of theory and 80 hours of supervised 
clinical instruction consistent with the legal scope of 
practice as defined by the Board of Nursing in Rule 
.0403(b) of this Section. Changes made by the Board 
of Nursing incontent hours or scope of practice in the 
nurse aide II program shall Be published in the 
Bulletin. Requests by the programs to modify the 
nurse aide II Course content shall be directed to the 
Board office. 

(3) The Board shall identify and publish minimum 
competency and qualifications for faculty for the 
nurse aide Level II programs. These are: 

(A) hold a current unrestricted North Carolina 
license to practice as a registered nurse; nurse 
in North Carolina; 

(B) have had at least two years of direct patient 
care experiences as an R.N.; and 

(C) have experience teaching adult learners. 

(4) Each nurse aide II program shall furnish the Board 
records, data, and reports requested by the Board in 
order to provide information concerning operation of 
the program and any individual who successfully 
completes the program. 

(5) When an approved nurse aide II program closes, the 
Board shall be notified in writing by the program. 
The Board shall he informed as to permanent storage 
of student records. 

(c) An annual program report shall be submitted by the 
Program Director to the Board of Nursing on Board form by 
March 15 of each year. Pailure to submit annual report shall 
result in administrative action affecting approval status as 
described in 21 NCAC 36.0405(5)(d) and (e). Complaints 
regarding nurse aide II programs may result in an on site survey 
by the North Carolina Board of Nursing. 

(d) Approval status shall be determined by the Board of 
Nursing using the annual program report, survey report and 
other data submitted by the program, agencies, or students. The 
determination shall result in full approval or approval with 
stipulations. 

(e) If stipulations have not been met as specified by the Board 
of Nursing, a hearing shall be held by the Board of Nursing 
regarding program approval status. A program may continue to 
operate while awaiting the hearing before the Board. 
EXCEPTION: In the case of summary suspension of approval 
as authorized by G.S. 150B(3)(c), the program must 
immediately cease operation. 



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PROPOSED RULES 



( 1 ) When a hearing is scheduled, the Board shall cause 
notice to be served on the program and shall specify 
a date for the hearing to be held not less than 20 days 
from the date on which notice is given. 

(2) If the Board determines from evidence presented at 
hearing that the program is complying with the Law 
and all rules, the Board shall assign the program Full 
Approval status. 

(3) If the Board, following a hearing, finds that the 
program is not complying with the Law and all rules, 
the Board shall withdraw approval. 

(A) This action constitutes discontinuance of the 
program; and 

(B) The parent institution shall present a plan to the 
Board for transfer of students to approved 
programs or fully refund tuition paid by the 
student. Closure shall take place after the 
transfer of students to approved programs 
within a time frame established by the Board; 
and 

(C) The parent institution shall notify the Board of 
the arrangements for storage of Permanent 
records. 



(a) Driver's license with a home address; 

(b) Voter registration card displaying a home 
address; or 

(c) Federal income tax return declaring the 
primary state of residence. 

(2) A nurse changing primary state of residence, from 
one party state to another party slate, may continue to 
practice under the former home state license and 
muitistate licensure privilege during the processing of 
the nurse's licensure application in the new home state 
for a period not to exceed 30 days. 

(3) The licensure application in the new home state of a 
nurse under pending investigation by the former home 
state shall be held in abeyance. The 30-day period in 
Item (2) of this Rule shall be stayed until resolution of 
the pending investigation. 

(4) Tlie former home state license shall no longer be valid 
upon the issuance of a new home state license. 

(5) If a decision is made by the new home state denying 
licensure, the new home state shall notify the former 
home state within 10 business days and the former 
home state may take action in accordance with that 
state's laws and rules. 



Authority G.S. 90-171.20(2)(4)(7)d..e..g.: 90-171.43(4): 90- 
171.55; 90-171.83:42 U.S.C.S. 13951-3(1987). 



Authority G.S. 90-171.82(6); 90-17I.83(a)(b); 90-171.85(b): 
90-171.87(4). 



SECTION .0700 - NURSE LICENSURE COMPACT 

.0701 DEFINITIONS OF TERMS IN THE COMPACT 

(a) For the purpose of the Compact enacted into Law G.S. 90, 
Article 9G: 



ill 
12} 
ill 



'Board" means party state's regulatory body 



responsible for issuing nurses licenses. 
"Information system" means the coordinated licensure 
information system. 

"Primary state of residence" means the state of a 
person'sdeclared fixed permanent and principal home 
for legal purposes; domicile. 
(4) "Public" means any individual or entity other than 
designated staff or representatives of party state 
Boards or the National Council of State Boards of 
Nursing, Inc. 
(b) Other terms used in this Section are as defined in G.S. 90- 
171.82. 

Authorities. 90-171.82; 90-171.87(4); 90-17 1.88(d)(e). 

.0702 ISSUANCE OF A LICENSE BY A COMPACT 
PARTY STATE 

For the purpose of the Compact: 
(1) A nurse applying for a license in a home party state 
shall produce evidence of the nurses' primary state of 
residence. Such evidence shall include a declaration 
signed by the licensee attesting to the licensee's 
primary state of residence. Further evidence that may 
be requested includes, but is not limited to: 



.0703 LIMITATIONS ON MULTISTATE 
LICENSURE PRIVILEGE 

Home state Boards shall include in all licensure disciplinary 
orders or agreements that limit practice or require monitoring the 
requirement that the licensee subject to said order or agreement 
will agree to limi t the licensee's practice to the home state during 
the pendency of the disciplinary order or agreement. This 
requirement may, in the alternative, allow the nurse to practice 
in other party states with prior written authorization from both 
the home state and such other party state Boards. 

Authority G.S. 90-171.37; 90-171. 85(f); 90-171.87(4). 

.0704 INFORMATION SYSTEM 

(a) Levels of access 
( 1) The public shall have access to nurse licensure 
information limited to: 



12] 



ill 



the nurse's name; 

iurisdiction(s) of licensure; 

license expiration date(s); 

licensure classification(s) and status(es); 

public emergency and final disciplinary 

actions, as defined by contributing state 

authority; and 

the status of muitistate licensure privileges. 
Non-party state Boards shall have access to all 
Information System data except current significant 
investigative information and other information as 
limited by contributing party state authority. 
Party state Boards shall have access to all Information 



lA) 
IB] 
IC] 
(D] 
IE] 



IF] 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1027 



PROPOSED RULES 



12] 
01 



System data contributed by the party states and other 
information as limited by the contributing state 
authority. 

(b) The hcensee may request jn writing to the home state 
Board to review the data relating to the Licensee [n the 
Information System. In the event a licensee asserts that any data 
relating to him or her is inaccurate, the burden of proof shall be 
upon the licensee to provide evidence that substantiates such 
claim. The Board shall verify and within 10 business days 
correct inaccurate data to the Information System. 

(c) The Board shall report to the Information System within 
10 business days: 

( I ) disciplinary action, agreement or order requiring 
participation in alternative programs or which limit 
practice or require monitoring (except agreements and 
orders relating to participation in alternatiye programs 
required to remain nonpublic by contributing state 
authority); 

dismissal of complaint; and 

changes m status of disciplinary action or licensure 
encumbrance. 

(d) Current significant investigative information shall be 
deleted from the Information System within 10 business days 
upon report of disciplinary action, agreement or order requiring 
participation in alternative programs or agreements which limit 
practice or require monitoring or dismissal of a complaint. 

(e) Changes to licensure information in the Information 
System shall he completed within 10 business days upon 
notification by a Board. 

Authority G.S. 90-171.87(4): 90-171.88. 

.0705 PARTY STATE LICENSURE REQUIREMENTS 

Party state licensure requirements for registered nurses and 
licensed practical nurses shall be considered substantially 
equivalent by the North Carolina Board of Nursing when current 
requirements include: 

( 1 ) completion of a nursing education program approved 
by the jurisdiction of original licensure; and 

(2) successful completion ot' the licensing examination 
developed by the National Council of State Boards of 
Nursing. Inc. 

Authority G.S. 90-171.32: 90-171.87(4): 90-171.94. 

CHAPTER 60 - BOARD OF 
REFRIGERATION EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the State Board of Refrigeration Examiners intends to 
adopt ride cited as 21 NCAC 60 .0316 and amend rules cited as 
21 NCAC 60. 01 02. .0207. .0311. .1102. Notice of Ride-making 
Proceedings was published in the Register on October 15. 1 999. 

Proposed Effective Date: July 1. 2000 



Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): A demand for a 
public hearing must be made in writing addressed to Barbara 
Mines. PO Bo.x 10666, Raleigh, NC 27605. The demand must be 
received by December 31, 1999. 

Reason for Proposed Action: Changes the street address of the 
Board, clarifies the definition of general supenision, requires 
licensees to notify the Board of address changes, sets out some 
specific circumstances under which applications for 
examination or licensure may be denied, and clarifies the 
procedure for preferring charges against refrigeration 
contractors. 

Comment Procedures: Any interested person may submit 
written comments on the proposed rules by mailing the 
comments to Barabara H. Mines, PO Bo.x 10666, Raleigh, NC 
27605 bxJanuan' 14, 2000. 



Fiscal Impact 
State Local 



Sub. 



None 
/ 



SECTION .0100 - ORGANIZATION AND 
DEFINITIONS 

.0102 OFFICE OF BOARD 

The Board's office is located at 410 Oberlin Rd.. Suite 410 
616 W. Johnson St. . Raleigh. North Carolina. The Board's 
mailing address is P.O. Box 10666, Raleigh. North Carolina 
27605. The Board's rules are available for inspection at this 
office during regular office hours. The materials used in 
rule-making decisions will be available for inspection at said 
office. 

Authority G.S. 87-54: 150B-11(2). 

SECTION .0200 - EXAMINATIONS 

.0207 REQUIREMENTS FOR EXAMINATION 
APPLICANTS 

(a) An applicant for the commercial refrigeration examination 
shall be eligible to take that examination upon: 

(1) Filing with the Board an application, on a form 
provided by the Board, together with the combined 
examination-license fee. 

(2) Furnishing with his application information verifying 
that he has acquired at least 4000 hours of commercial 
refrigeration experience gained while engaged 
actively and directly in the installation, maintenance, 
servicing or repairing of commercial, industrial or 
institutional refrigeration equipment. 

(b) An applicant for the transport refrigeration examination 
shall be eligible to take that examination upon: 

(I) Filing with the Board an application, on a form 
provided by the Board, together with the combined 
examination license fee. 



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PROPOSED RULES 



(2) Furnishing with his application information verifying 
that he has acquired at least 4000 hours of transport or 
commercial refrigeration experience or a combination 
of both gained while engaged actively and directly in 
the installation, maintenance, servicing or repairing of 
transport or commercial refrigeration equipment or a 
combination of both. 

(c) Prior to tiling the application, qualifying experience shall 
be acquired while working under the supervision of a person 
who holds a valid refrigeration contractor's license, who is a 
registered professional engineer or who has equivalent industry 
experience. Up to one-half of the experience may be in 
academic or technical training directly related to the field of 
endeavor for which the examination is requested. Applicants 
who obtain a license shall receive a certificate issued by the 
Board, bearing that license number. The license shall not be 
assigned or transferred to another individual. 

(d) An individual holding a valid transport contractor 
refrigeration license shall be eligible to sit for the commercial 
refrigeration examination upon filing with the Board an 
application, on a form provided by the Board, together with the 
combined examination-license fee. 

(e) The deadline for receipt of applications for a regular 
examination shall be six weeks prior to the examination date. If 
an application is received after the published deadline, it shall be 
returned to the applicant, and he shall be notified that he may 
apply for and take the next examination. This requirement may 
be waived for illness, personal necessity or similar extenuating 
circumstances. The Board shall publish the deadline for 
application receipt in selected newspapers, on posters mailed to 
all refrigeration wholesalers in North Carolina and in its 
quarterly newsletter. 

(0 If a person files an application for examination which is 
accepted, and takes and fails the examination, his verification of 
refrigeration experience shall be kept and shall be sufficient for 
taking any future examination, provided he files another 
application accompanied by the required fee. 

(g) The Board may deny an examination applicant permission 
to take an examination when it finds the applicant is not eligible, 
regardless of whether it has previously notified the applicant that 
he may take the examination. The Board may refuse to issue a 
license to a licensee when it finds the applicant is not qualified, 
regardless of whether the applicant has passed the appropriate 
examination. An applicant may contest the Board'sdecision by 
requesting an administrative hearing. 

Authority G.S. 87-54; 87-58. 

SECTION .0300 - LICENSES AND FEES 



(1) General supervision is that degree of supervision 
which is necessary and sufficient to ensure that the 
work is performed in a competent manner and with 
the requisite skill and that the work is done timely, 
safely and in accordance with applicable codes and 
rules. General supervision requires that the review of 
the work be performed in person by the licensee while 
the work is in progress. 

(2) Each business office for which a licensee is 
responsible shall be actively and locally supervised by 
that licensee who shall have primary responsibility 
and a corresponding amount oi' time personally 
involved in the work contracted for or performed by 
that office. 

Authority G.S. 87-54; 87-58(g}. 

.0316 CHANGE OF ADDRESS 

All licensees shall notify the Board in writing within 30 days 
of any change of address or business location. 

Authority G.S. 87-58. 

SECTION .1100 - DISCIPLINARY ACTION 

.1102 PREFERRING CHARGES 

(a) Any person who believes that any refrigeration contractor 
is in violation of the provisions of G.S. 87-59 may prefer 
charges against such contractor by setting forth the charges in 
writing with particularity including, but not limited to, the date 
and place of the alleged violation. Such charges shall be signed 
and sworn to by the party preferring such charges and filed with 
the Executive Director of the State Board of Refrigeration 
Examiners at the office of the Board, 410 Obe r l i n Rd., 616 W. 
Johnson St., P.O. Box 10666, Raleigh, North Carolina 27605. 

(b) A licensee who prefers charges against a refrigeration 
contractor shall cooperate with the Board in its investigation of 
the complaint including the execution of an affidavit covering 
their knowledge of the facts and circumstances concerning the 
complaint, if required, and participate jn any legal action 
authorized by the Board if requested by the Board or its 
representative. 

(c) A licensee shall fully cooperate with the Board in 
connection with any inquiry it shall make. Full cooperation 
includes responding in a timely manner to all inquiries of the 
Board or representative of the Board and claiming Board 
correspondence from the U.S. Postal Service. 

Authority G.S. 87-59. 



.0311 PERMITS 

(a) The refrigeration license number of the licensee shall 
appear on all permits as issued by a municipality. 

(b) A licensed contractor shall obtain permits and allow his 
number to appear on permits only for work over which he will 
provide general supervision until the completion of the work, 
and for which he holds the contract. 



TITLE 26 - OFFICE OF ADMINISTRATIVE 
HEARINGS 



N 



otice is hereby given in accordance with G.S. 150B-2I.2 
that the Office of Administrative Hearings intends to adopt 



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December 15, 1999 



1029 



PROPOSED RULES 



rule cited as 26 NCAC 3 .011 9 and amend rides cited as 26 
NCAC 1 .0101. .0103: 2C .0103. .0105. .0108. .0303, .0306. 
.0403: 3 .0101. Notice of Ride-making Proceedings was 
published in the Register on October 15, 1999. 

Proposed Effective Date: August 1. 2000 

A Public Hearing will be conducted at 10:00 am on January 
14, 2000 at 422 N. Blount Street, Raleigh, NC. 



( b ) Certified copies of any public document filed in the Office 
of Administrative Hearings are available at a cost of one dollar 
($1 .00) per certification in addition to the looseleaf copying cost. 

Diskette certification is not available. 

(c) Transcripts or tapes are available of contested case 
hearings. Refe r ence should be made to Rule 26 NCAC 3 .0122 
for procedures Procedures for requesting and costs of 
transcripts or tapes, tapes are in 26 NCAC 3 .0122. 

(d) North Carolina sales tax shall be added if applicable. 



Reason for Proposed Action: To amend rules relating to or 
affected by the following considerations: cost for copies 
obtained from OAH: format of rules and other provisions that 
are affected by OAH converting the Register and Code database 
from WordPerfect to Word: cost of electronic and email 
subscriptions to the Register: acceptance of filings to OAH via 
electronic and facsimile transmission: and to conform attorney 
leave in OAH to that recently provided in General Court of 
Justice. 



Authority G.S. I50B-21.25: 1508-37. 

SUBCHAPTER 2C - SUBMISSION PROCEDURES 

FOR RULES AND OTHER DOCUMENTS TO BE 

PUBLISHED IN THE NORTH CAROLINA 

REGISTER AND THE NORTH CAROLINA 

ADMINISTRATIVE CODE 

SECTION .0100 - GENERAL 



Comment Procedures: Written comments must be directed to 
Joey Propst, Rulemaking Coordinator. 6714 Mail Service 
Center, Raleigh, NC 27699-6714 or faxed to (919) 733-3462. 
Oral comments may be presented at the hearing. Comments 
must be received no later than January 14, 2000. 



Fiscal Impact 
State Local Sub. 



None 



/ 



26 NCAC 1. 0103, 2C. 0303 
all others 



CHAPTER 1 - GENERAL 
SECTION .0100 - GENERAL 

.0101 LOCATION 

(a) The principal office of the Office of Administrative 
Hearings is located at 424 North Blount Street, Raleigh, North 
Carolina. The mailing address is 6714 Mail Service Center, 
Raleigh, NC 27699-6714. 

(b) Forms and information about the office may be obtained 
from the agency's website at: www.oah.state.nc.us. 

Authority G.S. 7A-751(a). 

.0103 COST FOR COPIES 

(a) Copies of any public documents filed in the Office of 
Administrative Hearings are available in the following forms: 

( 1 ) looseleaf form at a cost of two dollars a n d fifty ce nt s 
($2.50) fo r up to ten p ages and fiftee n cents ($0.15) 
p e r page for each page in excess of ten: and twenty- 
five cents ($0.25) per page with a minimum cost of 
two dollars and fifty cents ($2.50); and 

(2) 3 1/2 inch o r 5 1/4 i n c h diskette at a cost of five 
dollars ($5.00) per diskette if the document is 
available in electronic form. 



.0103 ORIGINAL AND DUPLICATE COPY 

(a) The agency shall submit an original and one copy of any 
document and form for publication in the Register or Code. 

(b) With the exception of Temporary Rules, the Office of 
Administrative Hearings shall permit the filing of documents for 
publication in the Code and Register electronic transmission 
during regular business hours; provided the original document 
and one copy is received by OAH within five business days 
following the electronic transmission. Electronic transmissions 
submitted for filing with OAH shall use the electronic forms 
available on the Office of Administrative Hearings internet web 
site: http://www.oah.state.nc.us/ other electronic transmissions, 
for example, electronic mail, shall not constitute a valid filing 
with the OAH under this Rule. 

(c)(tT) The agency shall include an additional copy of the rule 
and a copy of the fiscal note and attachments with any 
permanent rule that is submitted to the Commission. 

(d)(c1 Tlie o r iginal and f o i i n sliall each be permanently 
marked as the o r ig i nal . The agency shall permanently mark the 
original rule and form as original. 

Note: Rules Review Commission requests that documents be 
submitted in the following order: 

( 1 ) the original submission form; 

(2) the agency return copy of the submission form, if any; 

(3) the copy of the submission form; 

(4) the original of the rule; 

(5) thecopy, highlighted if required by Rule .0405 of this 
Subchapter; 

(6) the agency return copy of the rule, if any; 

(7) the copy of the fiscal note and attachments; 

(8) the remaining copy for RRC. 

Authority G.S. 150B-21.17: 150B-21.18: 150B-21.19. 

.0105 ELECTRONIC VERSION 

(a) The electronic version shall be a 3 1/2 inch ( 1 .44 Mb) high 
density diskette compatible with or convertible to Wo r dPe r fect 



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14:12 



PROPOSED RULES 



6 . 1 , DOS 5.0. (A list of compatibl e and conve r tible softwa i r is 
availa b le from OAII.) the most recent version of Word for 
Windows. The tiled diskette shall identify the name of the 
document to be retrieved and the software used. OAH shall 
refuse to accept for publication any document in which the 
diskette is not compatible with or convertible to the p u b l ic at i o n 
softwa r e, the most recent version of Word for Windows. 

(b) An electronic version shall not be required if an agency 
that is unable to provide a diskette that is compatible with or 
convertible to W^o r dPerfect 6 . 1 . DOS 5.0 the most recent version 
of Word for Windows submits a written statement to the 
Codifier of Rules to that effect. This statement shall be signed 
by the agency head or rule-making coordinator. 

(c) An electronic version shall not be required if the agency 
submits the document(s) by email pursuant to 26 NCAC 2C 
.OlO.^(b). 

Authority G.S. 150B-2I.17; I50B-21.18: I50B-21.19. 

.0108 GENERAL FORMAT INSTRUCTIONS 

The agency shall format each rule submitted to OAH for 
publication in the Register or Code as follows: 

(1) Paper Specifications: 

(a) an 8'/2 by 1 1 inch sheet of plain white paper, 16 
to 32 lb.; 

one side of the sheet only; 
black ink; 

print font size shall be 10 point; 
portrait print (8'/2 x 1 1), no landscape printing 
( 1 1 X 8'/2); 

numbered lines on the left margin with each 
page starting with line 1 ; 
1.5 line spacing; 

each rule that has more than one page of text 
shall have page numbers appearing at the 
bottom of the page; and 
no staples. 

(2) Tab and Margin Settings: 
(a) Tab settings for all rules shall be set relative 

from the left margin at +0.13"Left, 

+0.38"Right, — +0.57''Left. +0.75"Right, 

+0.94"Left, — +l.l3"Righ t. — +1.31 "Left, 

+ 1.5"Right, +1.69"Left, +l.88"Right. — The 

default tab setting of eve r y '/j" may be used fo r 

ta b les and charts ; increments of ^ 

line numbers shall be set at .60 from left edge 

of paper; and 

text shall be with a one inch margin on all 

sides. 

(3) The Introductory Statement shall start on page I , line 
I of each rule. 

(4) When a new chapter, subchapter, or section of rules is 
adopted, the Chapter, Subchapter, and Section names 
shall be provided in bold print with the first rule 
following the introductory statement. One line Tvro 
tines shall be skipped between the introductory 
statement and each chapter, subchapter, and section 



(b) 
(c) 
(d) 
(e) 

(f) 

(g) 
(h) 



(i) 



(b) 



(c) 



name. 

(5) One line Two li n es shall be skipped before starting 
the line that provides the rule number and rule name. 
The decimal in the rule number shall be placed in 
position I . One tab Two tabs shall be between the 
rule number and rule name. The rule name shall be in 
capital letters and the rule number and name shall be 
in bold print. 

(6) Body of the Rule; 

(a) the body of the rule shall start on the line 
immediately following the rule name with the 
following markings: 

(i) adoptions - new text shall be underlined; 
(ii) amendments - any text to be deleted 

shall be struck through and new text 

shall be underlined; 
(iii) repeals - text of the rule shall not be 

included; 

(b) there shall be no lines skipped in the body of 
the rule except before and in tables; 

(c) the first level of text shall start with one ta b 
and be flush left with two spaces after 
parenthesis; 

(d) the second level of text shall start with two tabs 
one tab and one hanging indent after 
parenthesis; 

(e) the third level of text shall start with fottr three 
tabs and one hanging indent after parenthesis; 

(f) the fourth level of text shall start with six five 
tabs and one hanging indent after parenthesis; 

(g) the fifth level of text shall start with e i ght 
seven tabs and one hanging indent after 
parenthesis; 

(h) the sixth level of text shall start with ten nine 
tabs and one hanging indent after parenthesis. 

(7) Punctuation shall be considered part of the previous 
word when underlining or striking through text, such 
as: 

(a) when the previous word is deleted, the 
punctuation shall also be struck through with 
the previous word; and 

(b) when punctuation is added after an existing 
word, the existing word shall be struck through 
and followed by the word and punctuation 
underlined. 

The smallest unit of text to be struck through or 
underlined shall be an entire word or block of 
characters separated from other text by spaces. 

(8) Charts or Tables shall be in a format that is 
accommodated by WordPerfect 6.1. the most recent 
version of Word for Windows. 

(9) History Note: 

(a) shall be in italic font; 

(b) start on the second line following the body of 
the rule; 

(c) the first line of the History Note shall start in 
the first position; all lines following shall be 



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December 15, 1999 



1031 



PROPOSED RULES 



five two tabs; 



(d) the first line shall start with the words "History 
Note:", followed by one tab and the word 
"Authority". The agency shall then cite the 
authority(ies) in numerical order for that rule; 

(e) the effective date of the original adoption of 
the rule shall be the next line following the 
authority. The abbreviation "Eff." shall be 
followed by this date; 

(0 on the line following the "Eff." date, the 
amended dates shall be preceded with the 
words "Amended Eff." and the dates shall be 
listed in chronological order, with the most 
recent amended date listed first; 

(g) a temporary rule shall be listed as a separate 
item in the history note with the following 
words: "Temporary (Adoption, Amendment, or 
Repeal) Eff. (date)"; 

(h) the repealed date of a rule shall be the last line 
of the history note and start with the words 
"Repealed Eff." followed by the date; 

(i) all items in the history note shall be separated 
by semicolons with the last line ending with a 
period. 

(j) all history of a rule shall be in chronological 
order following the authority for the rule; 

(k) all dates in the history note shall be complete 
with the month spelled out, and shall not 
contain any abbreviations. 

(10) Numbers within the text shall be as follows: 

(a) numbers from one to nine shall be spelled out; 

(b) figures shall be used for numbers over nine; 

(c) if a phrase contains two numbers, only one of 
which is over nine, figures shall represent both. 

(11) Monetary figures within the text shall be spelled out 
followed by the numerical figure in parenthesis. 
Decimal and zeros shall be used only for even dollar 
amounts of sums less than one thousand dollars 
($1,000). 

Authority G.S. 150B-2I.I7; I50B-21.18: 150B-21.19. 

SECTION .0300 - THE NORTH CAROLINA 
REGISTER 

.0303 AVAILABILITY OF THE NORTH 
CAROLINA REGISTER 

(a) An annual subscription to the Register Register, available 
in hardcopv, W2 inch diskette, or email, shall be one hundred 
and ninety-five dollars ($ 1 95.00) plus NC sales tax if applicable. 

(b ) An annual elect r onic subscription shall b e two hundred 
and thirty-five dollars ($2.15.00) p lus NC sales tax if a pp l ic able. 

(b) (d Individual issues shall be ten dollars ($10.00) plus 
N.C. sales tax if applicable, 
trf) — A five pe r cent discou n t s h all be appli e d to the total 



subscription pric e when o r d er ing multiple copies delivered to the 
same add r ess. 

(cj te) A person requesting a subscription shall direct the 
request to the Office of Admi n ist r ative Hearings, 6 714 Mail 
Service Cente r , Raleigh, NC 27 6 99-6714. to: 

Office of Administrative Hearings 

6714 Mail Service Center 

Raleigh. NC 27699-6714 

phone: 919.7,1,1.2678 

fax: 9 19.731. ,1462 

email: postmaster @oah. state. nc. us 

Authority G.S. I50B-2J.25. 

.0306 PUBLICATION OF NOTICE OF TEXT 

(a) Based u p o n the type of n otic e r equi r ed in G.S. 
1 50D-2 1.2(c) o r ( g), the agency shall complete one of the 
following forms p r ovided b y OAH : 

fii Notice of Text and Hearing; or 

t2) Notice of Text. 

The agency shall submit its Notice of Text on an OAH Notice of 
Text form. If the information contained in the notice exceeds 
the space provided on the form, the agency shall also submit an 
electronic version of the information. 

(b) All rules submitted for publication by an agency at the 
same time, with the same proposed effective date, and with the 
same public hearing date and location if a hearing is scheduled, 
shall be listed on a single form. 

(c) The agency shall submit the text of the proposed rule and 
an electronic version. OAH shall return to the agency an edited 
copy of the rule and the filed diskette. 

(d) A rule proposed to be adopted or amended shall meet the 
following requirements: 

(1) The rule shall contain an introductory statement 
immediately preceding the text. The statement shall 
contain the rule citation and the action proposed to be 
taken. 

(2) Following the introductory statement, the rule 
number, name, text and history note shall be in the 
form specified in Rule .0108 of this Subchapter and as 
follows: 

(A) any text to be deleted from an existing rule 
shall be indicated by strikeout marks; 

(B ) any new or added text shall be underlined; and 

(C) punctuation shall be considered a part of the 
previous word, such as: 

(i) when the previous word is deleted, the 
punctuation shall also be struck through 
with the previous word; and 
(ii) when punctuation is added after an 
existing word, the existing word shall be 
struck through and followed by the 
word and punctuation underlined. 
The smallest unit of text to be struck through or 



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December 15, 1999 



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PROPOSED RULES 



underlined shall be an entire word or block of 
characters separated from other text by spaces, 
(e) A rule proposed to be repealed shall meet the following 
requirements: 

( 1 ) The rule shall contain an introductory statement. The 
statement shall contain the rule citation and the action 
proposed to be taken. 

(2) Following the introductory statement, the rule shall 
contain the number and rule name of the rule 
proposed to be repealed. 

(3) A history note shall follow the rule number and name. 

Authority G.S. J50B-2I.17. 

SECTION .0400 - NORTH CAROLINA 
ADMINISTRATIVE CODE 

.0403 SUBMISSION FOR PERMANENT RULE 
FORM 

(a) The agency shall submit a completed typed Submission 
for Permanent Rule form for each rule submitted for publication 
in the Code, except that the agency shall submit a single 
Submission for Permanent Rule form for all repealed rules that 
are codified within the same section and are consecutive 
nume r ically, chapter. 

(b) The agency head or rule-making coordinator shall sign the 
Submission for Permanent Rule form. If the agency head has 
designated its authority to another pursuant to G.S. I43B- 10(a), 
then the agency shall submit a copy of such designation. It is 
only necessary to submit one copy of such designation with all 
rules filed by an agency for a single months review by the 
Commission. 

Authority G.S. 150B-21.19. 

CHAPTER 3 - HEARINGS DIVISION 

SECTION .0100 - HEARING PROCEDURES 

.0101 GENERAL 

Governed by the principles of fairness, uniformity, and 
punctuality, the following general rules apply: 

(1) The Rules of Civil Procedure as contained in G.S. 
lA-1, the General Rules of Practice for the Superior 
and District Courts as authorized by G.S. 7A-34 and 
found in the Rules Volume of the North Carolina 
General Statutes and Canons 1 , 2 and 3 of the Code of 
Judicial Conduct adopted in accordance with G.S. 
7A- 1 0. 1 shall apply in contested cases in the Office of 
Administrative Hearings (OAH) unless another 
specific statute or rule of the Office of Administrative 
Hearings provides otherwise. 

(2) The Office of Administrative Hearings may supply, at 
the cost of reproduction, forms for use in contested 
cases. These forms witt shall conform to the format 
of the Administrative Office of the Courts' Judicial 



(^ 



ID 



(4] 



Department Forms Manual. 

E v e r y pleading a n d othe r docume n t filed with the 
Offi ce of Administrative Hearings shall b e signed by 
the atto r ney who p r epared the document, if it was 
p r epa r ed by a n atto r ne y , a n d s h all contain his n ame, 
add r ess, tele p hone numbe r , and No r th Ca r oli n a Stat e 
Ba r numbe r . — An o r iginal a n d o n e co p y of each 
document shall b e f i led. 

The Office of Administrative Hearings shall permit 
the niing of contested case documents and other 
pleadings by facsimile ( fax ) or electronic transmission 
during regular business hours. The faxed or 
electronic documents shall be deemed a "filing" 



within the meaning of 26 NCAC 3 .0102(a)(2) 
provided the original document and one copy is 
received by OAH within five business days following 
the faxed or electronic transmission. Electronic 
transmissions submitted for filing under Item (3) of 
this Rule with OAH shall use the electronic forms 
available on the Office of Administrative Hearings 
internet web site: http://vvww.oah.state.nc.us/ Other 
electronic transmissions, for example, electronic mail, 
shall not constitute a valid filing with the OAH under 
this Rule. 
(4^ Tlie Office of Administrative Hearings will perm i t the 
frtrng — of contested — case — documents — and — othe r 
pleadings by facsimile (fax) transmission du r i n g 
re gula r business hours. Tl i e faxed documents w i ll be 
d ee med a "fili n g" within the meaning of 26 NCAC 3 
■0102(a)(2) — pr ovided — the — original — document — is 
r eceiv e d by OAH within five business days following 
the faxed t r a n smiss i o n . 

Electronic transmissions filed by licensed North 
Carolina attorneys shall be in accordance with the 
Electronic Commerce Act, G.S. 66. Article II A. 
Attorneys shall register for an account on the Office 
of Administrative Hearings internet web site: 
http://www.oah.state.nc.us / Electronic filings 
submitted under Item (4) of this Rule shall be deemed 
an original "filing" within the meaning of 26 NCAC 
3 .0102(a)(2). Electronic transmissions submitted for 
filing under Item (4) of this Rule with the OAH shall 
use the electronic forms available on the Office of 
Administrative Hearings internet web site. Other 
electronic transmissions, forexample, electronic mail, 
shall not constitute a valid filing with the OAH under 
this Rule. 



(5) Except as othe r w i s e p r ov i ded by s t atut e s or by r ules 
pr omulgated under G.S. — 15 0B-38(h). the r ules 
co n tai n ed in this Chapte r shall gove r n the conduct of 
contested case heari n gs unde r G.S. 1 50B-40 whe n an 
Administ r ative Law Judge has been assigned to 
preside in the contested case. 

(5) Every pleading and other document filed with OAH 
shall be signed by the attorney who prepared the 
document, if it was prepared by an attorney, and shall 
contain his name, address, telephone number, and 



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December 15, 1999 



1033 



PROPOSED RULES 



North Carolina State Bar number. An original and 
one copy of each document siiall be filed. 
(6) Except as otherwise provided by statutes or by rules 
adopted under G.S. 1 50B-38(h). the rules contained in 
this Chapter shall govern the conduct of contested 
case hearings under G.S. 150B-40 when an 
Administrative Law Judge has been assigned to 
preside in the contested case. 

Authority G.S. 7A-750: 150B-40(c). 

.0119 SECURE LEAVE PERIODS FOR ATTORNEYS 

(a) Any attorney may designate one or more secure leave 
periods each year as provided in this Rule. 

(b) Length, Number. A secure leave period shall consist of 
one or more complete calendar weeks. During any calendar year. 
an attorney'ssecure leave periods pursuant to this Rule shall not 
exceed, in the aggregate, three calendar weeks. 

(c) Designation. Effect. To designate a secure leave period an 
attorney shall file a written designation containing the 
information required by Paragraph (d) with the Chief Hearings 
Clerk. The designation shall be filed: 

(1 ) no later than ninety (90) days before the beginning of 
the secure leave period, and 

(2) before any argument or other proceeding before an 
administrative law judge has been scheduled for a 
time during the designated secure leave period. 



Upon such filing, the secure leave period so designated shall be 
deemed allowed without further action by the presiding 
administrative law judge, and the attorney shall not be required 
to appear at any argument or other administrative proceeding 
during that secure leave period. 

(d) Content of Designation. The designation shall contain the 
following information: 



m 

{2} 

(4] 
the (5) 



the attorney's name, address, telephone number and 

state bar number. 

the date of the Monday on which the secure leave 

period is to begin and of the Friday on which it is to 

end. 

the dates of all other secure leave periods during the 

current calendar year that have previously been 

designated by the attorney pursuant to this Rule. 

a statement that the secure leave period is not being 

designated for the purpose of delaying, hindering or 

interfering with the timely disposition of any matter in 

any pending action or proceeding, and 

a statement that no argument or other proceeding has 

been scheduled during the designated secure leave 

period in any matter pending before an administrative 

law judge in which the attorney has entered an 

appearance. 



Authority G.S. 7A-750: 150B-40(c). 



1034 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant to G.S. 
150B-2l.l(e), publication of a temporary rule in the North Carolina Register sen-es as a notice of rule-making proceedings 
unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

Rule-making Agency: Division of Facility Senices 

Rule Citation: 10 NCAC 3R .6242 - .6243 

Effective Date: November 29. 1999 

Findings Reviewed by Julian Mann III: Approved 

Authority for the rule-making: G.S. I31E-I76(25): }3IE-J77(]): LUE-183(b} 

Reason for Proposed Action: 10 NCAC 3R. 6242 - Revision of Certificate Review Schedule for Remainder of Calendar Year 1999. 

There are no more certificate of need reviews scheduled for the remainder of the year since applicants have already had an 

opportunity to submit their CON applications in accordance with the review schedules published in the 1999 SMTP. 

10 NCAC 3R .6243 - Revision of the Nursing Care Bed determination in Brunswick County. 

The 1999 SMTP did not identify a need for Brunswick County. However, as a result of the withdrawal of a certificate of need issued 

to Magnolia Healthcare on December 11. 1997 for the development of 45 nursing care beds, there is now a need for 50 additional 

nursing care beds in Brunswick County. Consequently. 10 NCAC 3R .6243 is being adopted to conform to this change in need. 

Comment Procedures: Comments can be submitted to Jackie Sheppard. Dorothea Di.\ Campus. Council Building. 701 Barbour 
Drive. Raleigh. NC 27603. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .6200 - PLANNING POLICIES AND NEED DETERMINATIONS FOR 1999 

.6242 CERTIFICATE OF NEED REVIEW SCHEDULE FOR REMAINDER OF CALENDAR YEAR 1999 

In conformance with the review schedules published in the 1999 State Medical Facilities Plan, no application for a certificate of 
need shall be accepted for review by the Department of Health and Human Services from November 19. 1999 through December 
31. 1999. 

History Note: Authority G.S. 131E-176(25): 131E-177(1): 131E-183{b): 
Temporal^ Adoption Eff. November 29, 1999. 

.6243 NURSING CARE BED NEED DETERMINATION FOR REMAINDER OF CALENDAR YEAR 1999 

It is determined that the counties listed in this Rule need additional Nursing Care Beds as specified. It is determined that there is 
no need tor additional Nursing Care Beds in any other counties. 





Number of Nursing Care 


County 


Beds Needed 


McDowell 


40 


Randolph 


90 


Brunswick 


50 



History Note: Authority G.S. 1 31 E-176{25): 13IE-177il}: 131E-183(b): 



14:12 NORTH CAROLINA REGISTER December 15, 1999 1035 



TEMPORARY RULES 



Temporan' Adoption Eff. November 29. 1999. 



Rule-making Agency: Social Seirices Commission 

Rule Citation: 10 NCAC 29C .0201 -.0202 

Effective Date: November 19. 1999 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. I08A-25: I43B-153 

Reason for Proposed Action: On September 30. 1999, the 
President authorized the release of $20.3 million in emergency 
contingency funds to North Carolina to assist the elderly, the 
disabled and low-income families experiencing an energy crisis 
because of damage and flooding due the recent natural 
disasters. As a result of the availability of emergency finds, the 
Social Senices Commission adopted temporary rules on 
October 12. 1999, that established the Modified Crisis 
Inteirention Programs in the 42 most affected counties, effective 
October 13, 1999. The Modified Crisis Intenention Program 
provided additional financial assistance to eligible households 
impacted by Hurricane Floyd. 

This action is necessary' because the temporaiy rules adopted on 
October 12''' limited the use of the funds to victims of Hurricane 
Floyd and maintained the income limits at the same level as the 
regular program. The proposed amendments to these two rules 
will expand the use ofthefiinds to victims of Hurricanes Dennis, 
Floyd and Irene and raise the income limit to the ma.ximum 
levels pursuant to federal law. 

County departments of social ser\'ices in 42 counties have been 
operating the Modified Crisis Intervention Program since the 
adoption of the temporary rules. The local departments of 
social services have assessed their needs and the needs of their 
citizens in the aftermath of these disasters and have requested 
changes in the temporary rules to ensure the focus of the relief 
effor-ts be targeted to the actual victims of the recent hurricanes. 
Therefore, the Division of Social Serxices proposes to amend the 
applicable rules in order to focus the Modified Crisis 
InterTention Program to those households directly affected by 
the recent hurricanes in the 42 counties. Other households in 
the 42 counties will be serred under the regular Crisis 
Intervention Progr-arn. The proposed amendments to the 
temporary rides will allow only those households that were 
directly affected by the recent hurricanes to receive additional 
assistance under the modified program. Additionally, the 
proposed temporary ndes will increase the income limits from 
110% to 1509c of the federal pover-t)- level. Disaster related 
expenses would be allowed as an income deduction prior to 
determining eligibility. (Such as cleaning supplies and repair 
costs.) The proposed changes will allow the counties to better 
sene the most affected households in the designated counties. 



Comment Procedures: Anyone wishing to comment should 
contact Shamese Ransome, APA Coordinator, Social Services 
Commission, NC Division of Social Senices, 325 North 
Salisbury Street, Suite 819, 2401 Mail Senice Center, Raleigh, 
NC 27699-2401 phone (919) 733-3055, fax (919) 733-9386. 

CHAPTER 29 - INCOME MAINTENANCE: GENERAL 

SUBCHAPTER 29C - CRISIS INTERVENTION 
PROGRAM 

SECTION .0200 - MODIFIED CRISIS 
INTERVENTION PROGRAM 

.0201 GROUPS COVERED 

(a) The rules in this Section set forth the regulations for the 



Modifi 


;d Crisis Intervention Progra 


in the following counties that were in 


Hurricanes Dennis, Floyd, or Irene: 


(1) 


Beaufort 


(2) 


Bertie 


(3) 


Bladen 


(4) 


Brunswick 


(5) 


Camden 


(6) 


Carteret 


(7) 


Chowan 


(8) 


Columbus 


(9) 


Craven 


(10) 


Cumberland 


(11) 


Currituck 


(12) 


Dare 


(13) 


Duplin 


(14) 


Edgecombe 


(15) 


Franklin 


(16) 


Gates 


(17) 


Greene 


(18) 


Halifax 


(19) 


Harnett 


(20) 


Hertford 


(21) 


Hoke 


(22) 


Hyde 


(23) 


Johnston 


(24) 


Jones 


(25) 


Lenior 


(26) 


Martin 


(27) 


Nash 


(28) 


New Hanover 


(29) 


Northampton 


(30) 


Onslow 


(31) 


Pamlico 


(32) 


Pasquotank 


(33) 


Pender 


(34) 


Perquimans 


(35) 


Pitt 


(36) 


Robeson 



( 



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(37) Sampson 

(38) Tyrrell 

(39) Warren 

(40) Washington 

(41) Wilson 

(42) Wayne 

The rules in Section .0100 of 10 NCAC 29C set forth the 
regulations for households in the designated 42 counties in 
Paragraph (a) this Rule not affected by Hurricanes Dennis. 
Floyd or Irene and the remainder of the counties in the State. 

(b) "Residence" means a household residing in the counties 
designated in Paragraph (a) of this Rule. 

(c) Households must have incurred housing damage or 
property loss or lost income as a result of Hurricanes Dennis. 
Floyd, or Irene or the subsequent Hooding that occurred due to 
one of these hurricanes. 

History Note: Authority G.S. 108A-25: 143B-153; 

Temporaiy Adoption Ejf. October 13. 1999 to Expire on June 

30,2000: 

Temporaiy Amendment Eff. November 19, 1999 to Expire on 

June 30, 2000. 

.0202 ELIGIBILITY REQUIREMENTS 

A household must meet the following requirements to be 
eligible for the Modified Crisis Interyention Program: 

( 1 ) Income: A household must haye income at or below 
110 percent 150 percent of the current non-farm 
poyerty income guidelines. The Rule 10 NCAC 29B 
.0003 will goyern the definition and computation of 
income. Exception: Households will be allowed an 
income deduction for disaster related expenses paid or 
expected to be paid in the month of application. 
These expenses include but are not limited to cleaning 
supplies. housing repair. utility 
connection/reconnection fees, and replacement of 
household items. 

(2) Crisis: A household is in crisis if the household: 

(A) Is experiencing a heating or cooling related 
emergency as defined in 10 NCAC 29C .0102. 

(B) Is in need of repairs of its residence to ensure 
the household's ability to heat or cool its 
residence. 

(C) Needs heating or cooling equipment repaired 
or replaced in order to be able to heat or cool 
its residence. 

(3) Citizenship: Indiyiduals who are illegal aliens are not 
eligible for the Modified Crisis Intervention Program. 

History Note: Aiithorit}- G.S. 108A-25: 143B-153: 
Temporaiy Adoption Eff. October 13, 1999 to E.xpire on June 
30. 2000: 

Temporarx Amendment Eff. November 19, 1999 to Expire on 
June 30, 2000. 



Rule-making Agency: Social Sendees Commission 

Rule Citation: 10 NCAC 43L .0401 

Effective Date: November 10, 1999 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 143B-153 

Reason for Proposed Action: Prior to 1997, there were no 
federal fimds available that were specifically allowed to be 
trasferred into the Social Sen-ices Block Grant (SSBG): 
therefore, the applicability of the financial participation 
matching rate was not an issue. The current APA rule on Social 
Sen'ices Block Grant (SSBG) fiscal management was written 
many years ago and does not provide the flexibility needed for 
items fluided with transferred funds from alternate sources. This 
action is necessary to clarify that sen'ices originally fiinded with 
straight SSBG funds and now funded with funds transferred 
from the Temporary Assistance for Needy Families (TANF) 
Block Grant will continue to require financial participation 
matching rates as prescribed in the rule. Any new sen'ices 
funded with transferred fiinds from TANF will not require a 
financial participation matching rate unless specified by the 
General Assembly. 

Comment Procedures: If you wish to make comments please 
contact Ms. Sharnese Ransome, APA Coordinator, Division of 
Social Senies, 2401 Mail Senice Center, Raleigh, NC 27699- 
2401 : (919) 733-3055. Verbal comments may be presented at 
the public hearing. 

CHAPTER 43 - SERVICES PROGRAM PLAN 



SUBCHAPTER 43L 



■ SOCIAL SERVICES BLOCK 
GRANT 



SECTION .0400 - ADMINISTRATIVE 
REQUIREMENTS 

.0401 FISCAL MANAGEMENT 

The Division of Social Services shall establish the fiscal 
requirements for the Social Services Block Grant as follows: 
(1) Allocation of Funds. Any allocation of Social 
Services Block Grant Funds made directly to 
Department of Human Resources divisions or public 
or private agencies by the Department of Human 
Resources is based on the following criteria: 

(A) identified need for the service program; 

(B) established priorities of the department: 

(C) allowability of the program under federal and 
state rules and regulations; 

(D) assessed or potential performance of the 
service program; 

(E) resource utilization; 



14:12 



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December 15, 1999 



1037 



TEMPORAR Y RULES 



(F) availability offunds necessary to secure federal 
financial participation. 

(2) The amount of Social Services Block Grant (SSBG) 
funds allocated by the Department of Human 
Resources through the Division of Social Services to 
each county department of social services will be 
based on the average of the following two factors 
applied to the total amount of SSBG funds available 
for county departments of social services: 

(A) the percentage of the statewide population 
residing within each county; and 

(B) the percentage of the statewide unduplicated 
count of SSI recipients, food stamp recipients, 
AFDC recipients and medicaid eligible 
individuals residing in each county. 

(3) Matching Rates for Financial Participation. The 
following matching rates apply to financial 
participation in services funded by the Social Services 
Block Grant: 

(A) 75 percent financial participation - financial 
participation for provision of any service listed 
in Rule .020 1 of this Subchapter is available at 
a rate of 75 percent of the cost of providing the 
service; 

(B) 87-1/2 percent financial participation - 
financial participation for provision of in-home 
services — day care services for adults, 
preparation and delivery of meals, housing and 
home improvement services, and in-home aide 
services (levels I through IV) - is available at 
a rate of 87-1/2 percent of the cost of providing 
the service; 

(C) 90 percent financial participation - financial 
participation for provision of family planning 
services and the family planning component of 
health support services is available at a rate of 
90 percent of the cost of providing the service; 

(D) 100 percent financial participation - financial 
participation for provision of child day care 
and developmental day services for children is 
available at a rate of 100 percent of the cost of 
services for those child day care services 
reimbursed from an agency's designated 100 
percent day care allocation. 

(4) Transferred Funds. If funds from the 
Temporary Assistance for Needy Families 
(TANF) Block Grant are transferred to the 
Social Services Block Grant (SSBG) for 
services previously funded by SSBG. the 
matching rates outlined in Subparagraph (3) ot' 
this Rule shall apply. If funds from TANF are 
transferred to SSBG for services not previously 
funded by SSBG, the matching rates as 
outlined in Subparagraph (3) of this Rule shall 
not apply. 

Histon Note: Aulhoritx G.S. 1438-153; 



Ejf. July 1. 1983; 

Amended Ejf. December 1, 1991; July 1, 1990; December 1. 

1983; 

Temporary Amendment Eff. November 10, 1999. 



TITLE 11 - DEPARTMENT OF INSURANCE 

Rule-making Agency: NC Department of Insurance 

Rule Citation: // NCAC 12 .0327 

Effective Date: Januaiy 1. 2000 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 58-2-40; 58-2-235 

Reason for Proposed Action: SB 839 authorizes the 
Commissioner of Insurance to adopt a temporary rule to order 
interim claim payments to health care providers if claims cannot 
be processed in a timely fashion because of Year 2000 computer 
problems. 

Comment Procedures: Written comments should be sent to 
Barbara Morales Burke, Technical Services Group, NC 
Department of Insurance. Ill Seaboard Avenue, Raleigh, NC 
27604. 

CHAPTER 12 - LIFE AND HEALTH DIVISION 

SECTION .0300 - GENERAL PROVISIONS 

.0327 Y2K INTERIM CLAIM PAYMENTS 

For the purposes of G.S. 58-2-235(b), a claim shall be 
considered a clean claim if it is submitted in accordance with an 
insurer's claim submission requirements that have been 
communicated to health care providers by the provider 
agreement, the insurer's provider manual, or formal letters sent 
to providers explaining claim submission policies. An insurer 
shall not alter its claim submission requirements to make them 
more stringent because the insurer has experienced, or 
anticipates Year-2000 related problems that may interfere with 
its ability to process claims from health care providers. Clean 
claims submitted by health care providers that are not processed 
within 30 days after receipt or in accordance with the insurer's 
contractual agreement with the provider are subject to interim 
claim payment requirements as provided in G.S. 58-2-235. 

History Note: Authority G.S. 58-2-40; 58-2-235; 
Temporary' Adoption Eff. January 1_^ 2000. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 



1038 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



TEMPORARY RULES 



Rule-making Agency: NC Marine Fisheries Commission 

Rule Citation: ISA NCAC 3M .0301, .0506, .0515 

Effective Date: January I, 2000 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 113-134: 113-182: 113- 
221: I43B-289.52 

Reason for Proposed Action: 

15A NCAC 3M .0301 - Recent action by the National Marine 
Fisheries Senice (effective September 20, 1999) increased the 
size limit for king mackerel to 24 inches. G.S. 143B-289. 52(e) 
authorizes the MFC to adopt temporary rules within six months 
of amendment of a fishery management plan adopted pursuant 
to the Magnuson-Stevens Fishery Conservation and 
Management Act 

ISA NCAC 3M .0506 - Recent action by the National Marine 
Fisheries Sen-ice (effective September 8. 1999: published in 
Federal Register Vol .674, No. 171 on September 3, 1999) 
prohibits the haixest and possession of red porgy in the FEZ in 
order to protect the red porgy resource which is oveifished. 
G.S. 143B-289. 52(e) authorizes the MFC to adopt temporary 
rules within si.x months of amendment of a fishery management 
plan adopted pursuant to the Magnuson-Stevens Fishery 
Conseiration and Management Act. 

ISA NCAC 3M .OSIS - In the temporaiy adoption effective Jidy 
1. 1999, the taking of dolphin commercially was authorized 
through a federal permit. This commercial take should be 
authorized by the holding of the new licenses which were first 
made available through a rewrite of the licensing system 
effective July 1, 1999. This amendment authorizes the take of 
dolphin commercially by the new license system. 

Comment Procedures: Written comments are encouraged and 
may be submitted to the MFC. Juanita Gaskill. PO Box 769, 
Morehead City, NC 28557. These comments must be received 
no later than February 1, 2000. 

CHAPTER 3 - MARINE FISHERIES 

SUBCHAPTER 3M - FINFISH 

SECTION .0300 - SPANISH AND KING MACKEREL 

.0301 SPANISH AND KING MACKEREL 

(a) The Fisheries Director may. hy proclamation, impose any 
or all of the following restrictions on the taking of Spanish or 
king mackerel: 

( 1 ) Specify areas. 

(2) Specify seasons. 

(3) Specify commercial quantity. 

(4) Specify means/methods. 

(5) Specify size for fish taken hy commercial fishing 



operations. 

(b) King mackerel and Spanish mackerel taken for 
recreational purposes or by hook and line: 

( 1 ) It is unlawful to possess king mackerel less than 24 26 
inches fork length. 

(2) It is unlawful to possess more than three king 
mackerel per person per day. 

(3) It is unlawful to possess Spanish mackerel less than 
12 inches fork length. 

(4) It is unlawful to possess more than 10 Spanish 
mackerel per person per day. 

(c) King mackerel and Spanish mackerel taken by 
commercial fishing operations, exclusive of hook and line: 

(1) It is unlawful to possess king mackerel less than 20 
inches fork length. 

(2) It is unlawful to possess Spanish mackerel less than 
12 inches fork length. 

(d) Persons in possession of a valid National Marine Fisheries 
Service Coastal Migratory Pelagic (Mackerel) Permit to fish on 
the commercial mackerel quotas are exempt from the mackerel 
creel restrictions established in Paragraph (b) of this Rule. 

(e) Personsinpossessionof a valid National Marine Fisheries 
Service Federal Coastal Migratory Pelagic (Mackerel) Permit 
must comply with the mackerel creel restrictions established in 
Paragraph (b) of this Rule when fishing with more than three 
persons (including the captain and mate) on board. 

(f) It is unlawful to possess aboard or land from a vessel, or 
combination of vessels that form a single operation, more than 
3,500 pounds of Spanish or king mackerel, in the aggregate, in 
any one day. 

History Note: Authority G.S. 113-134: 1 13-182: 1 13-221 : 

143B-289.52: 

Eff. January 1, 1991: 

Amended Eff. March 1, 1996: 

Temporary Amendment Eff. Jaiuiarx 1, 2000 : July 1, 1999. 

SECTION .0500 - OTHER FINFISH 

.0506 SNAPPER-GROUPER 

(a) The Fisheries Director may, by proclamation, impose any 
or all of the following restrictions in the fisheries for species of 
the snapper-grouper complex and black sea bass in order to 
comply with the management requirements incorporated in the 
Fishery Management Plans for Snapper-Grouper and Sea Bass 
developed by the South Atlantic Fishery Management Council 
or Mid-Atlantic Fishery Management Council and the Atlantic 
States Marine Fisheries Commission: 

(1) Specify size; 

(2) Specify seasons; 

(3) Specify areas; 

(4) Specify quantity; 

(5) Specify means/methods; and 

(6) Require submission of statistical and biological data. 
The species of the snapper-grouper complex listed in the South 
Atlantic Fishery Management Council Fishery Management 
Plan for the Snapper-Grouper Fishery of the South Atlantic 



14:12 



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1039 



TEMPORARY RULES 



Region are hereby incorporated by reference and copies are 
available via the Federal Register posted on the Internet at 
www.access.gpo.gov and at the Division of Marine Fisheries, 
P.O. Box 769, Morehead City, North Carolina 28557 at no cost. 

(b) Black sea bass: 

( 1 ) It is unlawful to possess black sea bass less than ten 
inches total length. 

(2) It is unlawful to take or possess more than 20 black 
sea bass per person per day south of Cape Hatteras 
without a valid Federal Commercial Snapper-Grouper 
permit. 

(c) Gag grouper: 

( 1 ) It is unlawful to possess gag grouper (gray grouper) 
less than 24 inches total length. 

(2) It is unlawful to possess more than two gag grouper 
(gray grouper) per person per day without a valid 
Federal Commercial Snapper-Grouper Permit. 

(3) It is unlawful to possess more than two gag grouper 
(gray grouper) per person per day during the months 
of March and April. 

(4) It is unlawful to sell or purchase gag grouper (gray 
grouper) taken from waters under the jurisdiction of 
North Carolina or the South Atlantic Fishery 
Management Council during the months of March and 
April. 

(d) Black grouper: 

(1 ) It is unlawful to possess black grouper less than 24 
inches total length. 

(2) It is unlawful to possess more than two black grouper 
per person per day without a valid Federal 
Commercial Snapper-Grouper Permit. 

(3) It is unlawful to take or possess more than two black 
grouper per person per day during the months of 
March and April. 

(4) It is unlawful to sell or purchase black grouper taken 
from waters under the jurisdiction of North Carolina 
or the South Atlantic Fishery Management Council 
during the months of March and April. 

(e) It is unlawful to possess red grouper less than 20 inches 
total length. 

(f) It is unlawful to possess yellowfin grouper (fireback 
grouper) less than 20 inches total length. 

(g) It is unlawful to possess scamp less than 20 inches total 
length. 

(h) It is unlawful to possess yellowmouth grouper less than 
20 inches total length. 
(i) Speckled hind (kitty mitchell) and warsaw grouper: 

( 1 ) It is unlawful to sell or purchase speckled hind or 
Warsaw grouper. 

(2) It is unlawful to possess more than one speckled hind 
or one warsaw grouper per vessel per trip. 

(J) Greater amberjack: 
( 1 ) For recreational purposes: 

(A) It is unlawful to possess greater amberjack less 
than 28 inches fork length. 

(B) It is unlawful to possess more than one greater 
amberjack per person per day. 



(2) It is unlawful to sell or purchase greater amberjack 
less than 36 inches fork length. 

(3) It is unlawful to possess more than one greater 
amberjack per person per day without a valid Federal ^ 
Commercial Snapper-Grouper Permit. ' 

(4) It is unlawful to possess more than one greater 
amberjack per person per day during the month of 
April. 

(5) It is unlawful to sell or purchase greater amberjack 
during any closed season. 

(k) Red Snapper: 

(1) It is unlawful to possess red snapper less than 20 
inches total length. 

(2) It is unlawful to possess more than two red snapper 
per person per day without a valid Federal 
Commercial Snapper-Grouper permit. 

(1) Vermilion Snapper: 

(1 ) For recreational purposes: 

(A) It is unlawful to possess vermilion snapper 
(beeliner) less than 1 1 inches total length. 

(B) It is unlawful to possess more than 10 
vermilion snapper per person per day. 

(2) It is unlawful to possess or sell vermilion snapper 
(beeliner) less than 12 inches total length with a valid 
Federal Commercial Snapper-Grouper permit. 

(m) It is unlawful to possess silk snapper (yelloweye snapper) 
less than 12 inches total length. 

(n) It is unlawful to possess blackfin snapper (hambone 
snapper) less than 12 inches total length, 
(o) Red Porgy : 
(i) It is unlawful to possess red porgy (Pagnis pagrus) in 
North Carolina, porgy (pink or silve r s n appe r ) le ss 
than 14 inches total le n gth. 

(2) It is unlawful to possess more than Five r ed porgy per 

p erso n pe r day without a valid Federal Commercial 
S n apper-Groupe r permit. 

t¥) It is unlav ^ ful to possess mo r e than Five red porgy per 

p e r son pe r day du r ing the mo n ths of Ma r ch and Apr i l. 

(4) It is unlawful to sell or purchase red porgy take n f r om 

waters under the jurisdictio n of No r th Ca r oli n a o r the 
S o uth Atla n t i c F i she r y Management Council du r ing 
the mo n ths of March and April. 
(p) Combined Bag Limits: 

(1) It is unlawful to possess more than 10 vermilion 
snapper and 10 other snappers per person per day of 
which no more than two may be red snapper without 
a valid Federal Commercial Snapper-Grouper permit. 

(2) It is unlawful to possess more than Five grouper 
without a valid Federal Commercial Snapper-Grouper 
permit of which: 

(A) no more than two may be gag or black grouper 
(individually or in combination) per person per 
day; 

(B) no more than one may be speckled hind or one 
Warsaw grouper per vessel per trip. 

(3) It is unlawful to possess more than 20 Fish in the 
aggregate per person per day of the following species 



1040 



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December 15, 1999 



14:12 



TEMPORARY RULES 



without a valid Federal Commercial Snapper-Grouper 
permit: whitebone porgy, jolthead porgy, knobbed 
porgy. longspine porgy, sheepshead, gray triggertlshi, 
queen triggerfish, yellow jack, crevalle jack, bar jack, 
almaco jack, lesser amberjack, banded rudderfish, 
white grunt, margates, spadefish, and hogfish. 
(q) It is unlawful to possess any species of the Snapper- 
Grouper complex except snowy, warsaw, yellowedge, and misty 
groupers; blueline, golden and sand tilefishes; while having 
longline gear aboard a vessel. 
(r) It is unlawful to possess Nassau grouper or jewfish. 
(s) Fish Traps/Pots: 

(1) It is unlawful to use or have on board a vessel fish 
traps for taking snappers and groupers except sea bass 
pots as allowed in Subparagraph (2) of this Paragraph. 

(2) Sea bass may be taken with pots that conform with 
the federal rule requirements for mesh sizes and pot 
size as specified in 50 CFR Part 646.2, openings and 
degradable fasteners specified in 50 CFR Part 
646.22(c)(2)(i), and escape vents and degradable 
materials as specified in 50 CFR Part 622.40 (b)(.i)(i) 
and rules published in 50 CFR pertaining to sea bass 
north of Cape Hatteras (35" 1 5" N Latitude). Copies 
of these rules are available via the Federal Register 
posted on the Internet at www.access.gpo.gov and at 
the Division of Marine Fisheries, P.O. Box 769, 
Morehead City, North Carolina 28557 at no cost. 

(t) It is unlawful for persons in possession of a valid National 
Marine Fisheries Service Snapper-Grouper Permit for Charter 
Vessels to exceed the creel restrictions established in Paragraphs 
(b),(j), to); and (p) of this Rule when fishing with more than 
three persons (including the captain and mate) on board. 

(u) In the Atlantic Ocean, it is unlawful for an individual 
fishing under a Recreational Commercial Gear License with 
seines, shrimp trawls, pots, trotlines or gill nets to take any 
species of the Snapper- Grouper complex. 

Histoiy Note: Authority G.S. 113-134: 113-182: 1 13-221: 

143B-289.52; 

Eff. January 1, 1991; 

Amended Eff. April!. 1997: March I. 1996; September 1. 1991: 

Temporaiy Amendment Eff. December 23, 1996; 

Amended Eff. August I. 1998; April 1. 1997; 

Temporaiy Amendment Eff. Jannarx l_^ 2000 ; May 24. 1999. 

.0515 DOLPHIN 

(a) It is unlawful to possess more than 10 dolphin per person 
per day taken by hook and line for recreational purposes except 
charter except : ( 1 )Charter vessels with a valid National Marine 
Fisheries Service Charter Vessel Coastal Migratory Pelagic 
Permit and licensed by the U.S. Coast Guard to carry six or less 
passengers for hire, may possess a maximum of 60 dolphin per 
day regardless of the number of people on board. 

(b) Vessels, including charterboats when fishing with three or 
less persons (including captain and mate) on board, with a valid 
Standard or Retired Standard Commercial Fishing License or a 
Land or Sell License, may possess more than 60 dolphin per 



day. (2)Vessels with a valid comme r cial Natio n al Marin e 
Fisheries Serv i ce Federal Coastal Mig r ato r y P e lagic Permit 
including charterboats when fishing with three o r le s s p ersons 
(i n clud i ng captain a n d mate) o n board. 

Histoiy Note: Authority G.S. 113-134; 1 13-182; 143B- 

289.52: 

Temporaiy Adoption Eff. July I, 1999: 

Temporan' Amendment Eff. January 1_^ 2000. 

Rule-making Agency: Commission for Health Senices 

Rule Citation: 15A NCAC 18A .1809. .1811 -.181 2 

Effective Date: Januaiy 31. 2000 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. I30A-248 

Reason for Proposed Action: The rule changes are required 
by legislation the General Assembly passed and need to be in 
place by Januaiy 31, 2000. 

Comment Procedures: Send all comments to Susan C. 
Grayson. Branch Head. DENR/EHSS, 1632 Mail Service 
Center, Raleigh, NC 27699-1632. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 



SECTION .1800 



SANITATION OF LODGING 
PLACES 



.1809 LAVATORIES AND BATHS 

(a) Baths, lavatories, and toilets shall be provided for each 
room or unit in establishments constructed on or after December 
1 , 1 988. Such fixtures shall be kept clean and in good repair. 

(b) All lavatory and bathing facilities shall include hot and 
cold running water under pressure with a mixing faucet, a clean 
towel in good repair and provided daily for each guest, and soap. 
The lavatory, its handles, faucet, and vanity shall be washed 
using an aj] purpose cleaner and rinsed daily if the room has 
been occupied. A sanitizer shall be applied to the lavatory and 
vanity using a method such as a wipe-on chemically-treated 
disposable sanitizing towel or equivalent. The sanitizer shall be 
left to air dry. Sanitizing solutions shall consist of iodophors, 
quaternary ammonium or other chemicals or methods that are 
equivalent to the action of 50 parts per million chlorine solution. 
A method or equipment for testing the sanitizer shall be 
available and used to insure minimum prescribed sanitizer 
strength. 

(c) Floors, walls, and ceilings shall be cleanable, durable, and 



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shall be kept clean and in good repair. 

(d) All sewage and other liquid wastes shall be disposed of in 
a public sewer system or, in the absence of a public sewer 
system, by a sanitary system of sewage treatment and disposal 
constructed and operated in accordance with 15A NCAC ISA 
.1900. 

History Note: A uthority G. S. 1 30A-248: 

Eff. February 1, 1976: 

AmendedEjf.Jidy 1. 1977: 

Readopted Eff. Decembers. 1977: 

Amended Eff. Janiiaiy 1, 1996: April I, 1992: December 1. 

1988: 

Temporarx Amendment Eff. Jamiarx 31. 2000. 

.181 1 DRINKING WATER FACILITIES 

(a) Facilities for the dispensing of drinking water shall be of 
sanitary design. If drinking fountains are provided, they shall be 
of angle-jet type. 

(b) Multi-use or single s er vice, utensils such as glasses, cups. 
pitche r s or ice buckets ice buckets, or ice bucket lids may be 
when used, p r ovided all mulli-use utensils are shall be washed. 
rinsed and washed tho r oughly, subjected to a an approved 
sanitizing treatment, and stored and handled in a sa n ita r y m a n ne r 
before being given to succeeding guests, manner to prevent 
contamination. For the washing, sanitizing treatment, and 
storage of multi-use utensils, equipment and methods fa c ilities 
meeting the requirements of the "Sanitation "Rules Governing 
the Sanitation of Restaurants and Other Foodhandling 
Establishments" 15A NCAC ISA .2600 shall be pr ovided. 
provided; except, when properly fitting disposable food grade 
liners are provided, ice buckets shall be treated as non-food 
contact surfaces and shall be washed, using an aM purpose 
cleaner suitable for food contact surfaces, and rinsed. The lid 
used with the lined ice bucket shall be washed, rinsed and 
subjected to an approved sanitizing treatment in place. The 
lavatory shall be cleaned and treated with an approved sanitizer 
prior to using the water from the lavatory to clean. Submersion 
of ice buckets and lids during in-place cleaning procedures is not 
required. These ut e nsils shall n ot be wa she d in r oom lavato r ies. 
Single-se r vice items shall be stored and handled in a sanitary 
man n er. Clean glasses shall be individually wrapped or fitted 
with a single-service cap that covers the edge of the glass. If 
d i s p o s a b le o r single se r vice plastic line r s are p r ovided fo r ice 
buckets, the sanitization of buckets is not required. 

(c) Ice used for room service shall be manufactured from an 
approved water supply and shall be stored and handled in a 
sanitary manner. Ice storage bins shall not be used for any other 
purpose and shall be kept clean and in good repair. Where ice 
is made on the premises, the machines shall be located in a 
protected place. Scoops shall be provided so guests or 
employees can dispense ice in a sanitary manner. Machines, 
equipment, utensils, and the room or area in which the machines 
are located shall be kept clean and in good repair. All ice 
machines for use by guests installed after January 1 , 1 996, shall 
dispense ice without exposing stored ice to guests. 

(d) Ice storage bi n s shall not be used fo r any othe r pu rp ose 



a n d sh a ll be kept clean and in good r e p air. Employees cleaning 
ice buckets, ice bucket lids, coffee or tea makers, shall have 
washed their hands immediately prior to cleaning these items, 
(e) Single service glasses, cups, ice buckets, ice bucket lids, 
or food grade ice bucket liners may be used, if discarded after 
each use. Single service items, including clean disposable 
towels, shall be stored and handled in a manner to prevent 
contamination. 

HistoiyNote: Authority G.S. 130A-248: 

Eff. Februaiy 1. 1976: 

Readopted Eff. December 5, 1977: 

Amended Eff. Jamiaty 1, 1996: September 1, 1990: 

Temporarx Amendment Eff. January 31, 2000. 

.1812 GUESTROOMS 

(a) Guestrooms and bathrooms shall have lighting with a 
minimum of 30 foot-candles of light at 30 inches above the 
floor. Where natural ventilation only is provided, outside 
openings shall be screened. Windows and glass doors shall be 
kept clean and in good repair. In the absence of windows, air 
conditioning and artificial lighting constitutes satisfactory 
compliance. 

(b) Window coverings shall be kept clean and in good repair. 

(c) Two sheets shall be provided for each bed. The lower 
sheet shall be folded under both ends of the mattress. The upper 
sheet shall be folded under the mattress at the lower end and 
folded over the cover for at least six inches at the top end. Bed 
linens, including sheets, pillow cases, blankets and bedspreads, 
shall be kept clean and in good repair. 

(d) The floors, walls and ceilings of bedrooms, closets and 
storage areas shall be kept clean and in good repair. Furniture, 
fixtures, carpets and other accessories shall be kept clean and in 
good repair. 

(e) All lodging establishments shall be kept free of roaches, 
flies and other pests. Guestrooms having outside openings shall 
be effectively screened unless air conditioned. 

(0 Coffee and tea makers shall be kept clean. Coffee or tea 
pots and other multi-use items exposed to heat during use may 
be washed and rinsed in place. 

HistoiyNote: Authority G.S. 130A-248; 

Eff. Februaiy 1. 1976: 

Readopted Eff. Decembers, 1977: 

Amended Eff. Januaiy 1, 1996: April I. 1992: September 1, 

1990: September 1, 1979: 

Temporary Amendment Eff. January 31, 2000. 

Rule-making Agency: Department of Environment and 
Natural Resources 

Rule Citation: ISA NCAC 18A .2802, .2806. .2810, .2812, 
.281S, .282S 

Effective Date: December 1, 1999 



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Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. J 10-86; 110-91 

Reason for Proposed Action: Agency staff recognized the 
immediate need to amend these Rules to address compliance 
feasibility issues concerning child care centers licensed for 
fewer than 13 children and located in a residence. 

Comment Procedures: Written comments may be submitted to 
Ed Norman. Department of Environment and Natural 
Resources, Division of Environmental Health, Environmental 
Health Services Section, 1632 Mail Service Center, Raleigh, NC 

27699-1632. 



CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER 18A - SANITATION 

SECTION .2800 - SANITATION OF CHILD DAY 
CARE FACILITIES 

.2802 APPROVAL OF CONSTRUCTION AND 
RENOVATION PLANS 

(a) Plans drawn to scale and specifications for new ciiiid care 
centers siiall be submitted to the local health department for 
review and approval prior to initiating construction. Plans 
drawn to scale and specifications for changes to building 
dimensions, kitchen specifications, or other modifications to 
existing child care centers shall also be submitted to the local 
health department for review and approval prior to construction. 
Plans drawn to scale and specifications for prototype "franchise" 
or "chain" child care centers shall be submitted to DENR, 
Division of Environmental Health, Environmental Health 
Services Section, Children's Environmental Health Branch, PO 
Box 29534, Raleigh, North Carolina 27626-0534. The initial 
inspection for new construction or the first inspection following 
modifications to existing child care centers shall not be made by 
the local health department unless these plans have been 
approved. For new or proposed child care centers licensed for 
fewer than 1 3 children and located in a residence, a site visit to 
evaluate and assist in meeting the requirements of this Section 
may be requested by the child care operator prior to submission 
of plans and shall be conducted by the local health department 
within 30 days of the request. 

(b) Review of the plans by the local health department or the 
Environmental Health Services Section shall be based on the 
requirements of this Section. 

(c) Construction and modifications shall comply with the 
approved plans. 

History Note: Authorit}- G. S. 110-91 ; 

Ejf. July 1. 1991: 

Temporary Amendment Eff. December 1, 1999; April 15. 1998. 

.2806 FOOD STORAGE 



(a) Food products shall be stored in approved, clean, tightly 
covered, storage containers once the original package is opened. 
Container covers shall be impervious and nonabsorbent. 

(b) Foods not stored in the product container or package in 
which it was obtained, shall be stored in a tightly covered, 
approved food storage container identifying the food by 
common name. 

(c) Food shall be stored above the floor in a manner that 
protects the food from splash and other contamination and that 
permits easy cleaning of the storage area. 

(d) Food and containers of food shall not be stored under 
exposed or unprotected sewer lines or water lines, except for 
automatic tire protection sprinkler heads that may be required by 
law. Food shall not be stored in toilet or laundry rooms, or other 
areas where there is a potential for contamination. Child care 
centers licensed for fewer than 13 children and located in a 
residence may store properly protected food in laundry rooms. 

(e) All food shall be stored in a manner to protect it from 
dust, insects, drip, splash and other contamination. 

(f) Packaged food such as milk or other fluid containers may 
be stored in undrained ice as long as any individual units are not 
submerged in water. Wrapped sandwiches shall not be stored in 
direct contact with ice. 

(g) Refrigerated storage: 

(1) Refrigeration equipment shall be provided in such 
number and of such capacity to assure the 
maintenance of potentially hazardous food at required 
temperatures during storage. Each refrigerator shall 
be provided with a numerically scaled indicating 
thermometer, accurate to +3°F, (+ l.5°C) located to 
measure the air temperature in the warmest part of the 
refrigerator and located to be easily readable. 
Recording thermometers, accurate to +3 °F (+ 1 .5 °C), 
may be used in lieu of indicating thermometers; 

(2) Potentially hazardous food requiring refrigeration 
after preparation shall be cooled to an internal 
temperature of 45°F (7°C), or below. Cooling of 
potentially hazardous foods shall be initiated upon 
completion of preparation or a period of hot storage. 
Methods such as shallow pans, agitation, quick 
chilling or water circulation external to the food 
containers shall be used to cool large quantities of 
potentially hazardous food. Potentially hazardous 
food to be transported cold shall be prechilled and 
held at a temperature of 45°F (7°C) or below; 

(3) Ice used for cooling stored food and food containers 
shall not be used for human consumption. 

(h) Hot storage: 
( I ) Hot food storage equipment shall be provided in such 
number and of such capacity to assure the 
maintenance of food at the required temperature 
during storage. Each hot food unit shall be provided 
with a numerically scaled indicating thermometer, 
accurate to + 3°F (+ 1.5°C), located to m.easure the 
air temperature in the coolest part of the unit and 
located to be easily readable. Recording 
thermometers, accurate to +3°F (+ 1.5°C), may be 



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used in lieu of indicating thermometers. Where it is 
impractical to install thermometers on equipment such 
as steam tables, steam kettles, heat lamps, cal-rod 
units, or insulated food transport carriers, a metal 
stem-type numerically scaled indicating product 
thermometer shall be available and used to check 
internal food temperature; 
(2) The internal temperature of potentially hazardous 
foods requiring hot storage shall be 140°F (60°C) or 
above except during necessary periods of preparation 
and service. Potentially hazardous food to be 
transported hot shall be held at a temperature of 
140°F(60°C) or above. 

Histoiy Note: Authority G.S. 110-91 : 

Eff. July 1, 1991: 

Amended Eff. February 1, 1995: 

Temporarx Amendment Eff. December 1_^ 1999. 

.2810 SPECIFICATIONS FOR KITCHENS 

(a) For child care centers licensed for or serving food to fewer 
than 30 children: 

( 1 ) Domestic kitchen equipment may be used. Domestic 
kitchen equipment shall include at least a 
two-compartment sink, drainboards or countertop 
space of adequate size, refrigeration equipment and 
adequate cooking equipment. Child care centers 
using multi-service articles shall also provide a 
dishwasher. In lieu of a dishwasher and 
two-compartment sink, a three-compartment sink with 
drainboards or counte r space countertop space of 
adequate size on each end may be used; 

(2) A separate lavatory for handwashing is required in 
food preparation areas. If the dishwashing area is 
separate from the food preparation area, an additional 
lavatory shall be required in the dishwashing area. 
These handwashing lavatories shall be used only by 
food service personnel; and 

(3) A commercial hood shall be installed when foods are 
fried on-site. The hood shall be installed in 
accordance with the North Carolina Building Code 
and approved by the local building code enforcement 
agent. 

(b) For child care centers licensed for or serving food to 30 
or more children: 

(I) Approved food service equipment shall be used. 
When domestic refrigeration equipment is used the 
following provisions shall apply: 

(A) Potentially hazardous foods shall not be 
prepared prior to the day that such foods are to 
be served; 

(B) Potentially hazardous foods that have been 
heated shall not be reheated or placed in 
refrigeration to be used in whole or in part on 
another day; 

(C) Salads containing potentially hazardous food 
shall not be prepared on-site; and 



(D) All meats, poultry, and fish shall be purchased 
in pre-portioned, ready-to-cook form. 

(2) Food service equipment shall include: 

(A) Where meals are prepared and multi-service 
articles are used, at least a three-compartment 
sink with drainboards or countertop space of 
adequate size on each end, refrigeration 
equipment, and cooking equipment; 

(B) Where meals are prepared and only single- 
service articles are used, at least a two- 
compartment sink with drainboards or counter 
top space of adequate size on each end, 
refrigeration equipment, and cooking 
equipment; or 

(C) Where no meals are prepared and only single- 
service articles are used, refrigeration 
equipment, and at least a domestic two- 
compartment sink with drainboards or 
countertop space of adequate size on each end. 

(3) A separate food preparation sink with drainboards 
shall be provided for the washing and processing of 
foods except where plan review shows that volume 
and preparation frequency do not require separate 
facilities. 

(4) A separate lavatory for handwashing is required in 
food preparation and food service areas. If the 
dishwashing area is separate from the food 
preparation area, an additional lavatory shall be 
required in the dishwashing area. These handwashing 
lavatories shall be used only by food service 
personnel. 

(5) A commercial hood shall be installed when foods are 
fried on-site. The hood shall be installed in 
accordance with the North Carolina Building Code 
and approved by the local building code enforcement 
agent. 

(c) If baby food is prepared in the infant or toddler area, an 
infant/toddler food service area shall be provided. The 
infant/toddler food service area shall be used exclusively for the 
storage of infant bottles, warming of bottles, storage of fully 
prepared baby foods in their containers and the mixing of dry 
cereals with formula or with potable water from a source other 
than a lavatory used for handwashing. The food preparation 
counters, bottle warming equipment, food and food contact 
surfaces shall not be within reach of children. The infant/toddler 
food service area shall contain at least an adequate refrigerator, 
bottle warming equipment, an easily cleanable counter top and 
a separate lavatory for food service handwashing only. 
Domestic food service equipment may be used in infant/toddler 
food service areas regardless of child care center size. 

(1) All equipment shall be cleaned at least daily. 
Warming equipment shall be cleaned and sanitized as 
required in Rule .2812 or .2813 of this Section. 

(2) After each use, all multi-use and multi-service eating 
and drinking articles shall be cleaned and sanitized in 
the child care center kitchen. 

(3) Single-service articles shall be handled as required in 



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Rule .2814 of this Section. 
(4) Counter, shelf or cabinet space shall be provided for 

food storage. All dry cereal shall be stored in closed, 

labeled containers. Food supplies shall be stored in 

accordance with this Section, 
(d) Equipment that was installed in a child care center prior to 
July 1, 1991 that does not meet all the design and fabrication 
requirements of this Section shall be deemed acceptable if it is 
in good repair, capable of being maintained in accordance with 
the rules of this Section and the food-contact surfaces are 
nontoxic. This exception shall not apply to equipment in 
Paragraph (c) of this Rule or to commercial hoods that are 
required for frying foods. Replacement equipment and new 
equipment acquired after July 1, 1991 shall meet the 
requirements of Paragraphs (a), (b) and (c) of this Rule. 
Licensed child care centers that increase the number licensed for 
or that increase the number of children to whom they serve food, 
shall comply with all the rules of this Section. Upon change of 
ownership, or the closing of the operation and the issuance of a 
new license, the child care center shall comply with all the rules 
of this Section. 

Histon- Note: Authority G.S. 110-91: 

Eff. July I, 1991: 

Amended Eff. March 1, 1995; 

Temporaty Amendment Eff. April 15, 1998: 

Amended Eff. April 1. 1999; 

Temporarx Amendment Eff. December 1^ 1999. 

.2812 MANUAL CLEANING AND SANITIZING 

(a) Child care centers licensed for or serving food to 30 or 
more children, shall provide and use a three-compartment sink 
with drainboards or counter top space of adequate size on each 
end if utensils and equipment are manually cleaned and 
sanitized. 

(b) Child care centers licensed for or serving food to fewer 
than 30 children may that use a domestic dishwasher and two 
compartment sink with drainboa i' ds o r c o u nt e r top space of 
adequate size on each end for sanitizing multi-service articles 
shall sanitize washing and r insing of multi-use and multi-se r vice 
articles and equipment. Utensils and equipment shall then be 
sanitized in the sink as required in Subparagraph (e)(4) of this 
Rule. Sink compartments shall be large enough to submerge the 
largest items to be washed and each compartment shall be 
supplied with hot and cold running water. 

(c) If required under Rule .28 1 of this Section. Drainboards 
drainboards or countertop space of adequate size shall be 
provided for proper handling of soiled utensils prior to washing 
and cleaned utensils following sanitizing. For child care centers 
originally licensed on or after April 15, 1998, drainboards or 
countertop space shall be no less than 24" long. For child care 
centers licensed for fewer than 13 children and located in a 
residence, a domestic dishwasher may be used to provide the 
equivalent of 24^ of drain board space, and other designated 
areas not contiguous with the sink may be utilized to meet 
drain board or countertop space requirements. Replacement 
equipment and new equipment acquired on or after April 15, 



1998 shall meet the requirements of this Paragraph. Upon 
change of ownership, or the closing of the operation and the 
issuance of a new license, a child care center shall also comply 
with this Paragraph. 

(d) Equipment and utensils shall be pretlushed or prescraped 
and, when necessary, presoaked to remove gross food particles 
and soil. 

(e) Except for fixed equipment and utensils too large to be 
cleaned in sink compartments, manual washing, rinsing, and 
sanitizing shall be conducted in the following sequence: 

( 1 ) Sinks shall be cleaned and sanitized prior to use. 

(2) Equipment and utensils shall be thoroughly washed in 
the first compartment with a hot detergent solution 
that is kept clean. 

(3) Equipment and utensils shall be rinsed free of 
detergent and abrasives with clean water in the second 
compartment. 

(4) The food-contact surfaces of equipment and utensils 
shall be sanitized in the third compartment by: 

(A) Immersion for at least one minute in clean, hot 
water at a temperature of at least 170°F 
(77°C); 

(B) Immersion for at least two minutes in a clean 
solution containing at least 50 parts per million 
(ppm) of available chlorine at a temperature of 
at least 75°F(24°C); 

(C) Immersion for at least two minutes in a clean 
solution containing at least 12.5 ppm of 
available iodine and having a pH not higher 
than 5.0 and at a temperature of at least 75 °F 
(24°C); or 

(D) Immersion for at least two minutes in a clean 
solution containing at least 200 ppm of 
quaternary ammonium products and having a 
temperature of at least 75 °F (24 °C), provided 
that the product is labeled to show that it is 
effective in water having a hardness value at 
least equal to that of the water being used. 

(f) For utensils and equipment which are either too large or 
impractical to sanitize in a dishwashing machine or dishwashing 
sink, a spray-on or wipe-on sanitizer shall be used. When 
spray-on or wipe-on sanitizers are used, the chemical strengths 
shall be those required for sanitizing multi-use eating and 
drinking utensils. Spray-on or wipe-on sanitizers shall be 
prepared daily and kept on hand for bactericidal treatment. 

(g) When hot water is used for sanitizing, the following 
facilities shall be provided and used: 

(1) An integral heating device or fixture installed in, on, 
or under the sanitizing compartment of the sink 
capable of maintaining the water at a temperature of 
atleast 170°F(77°C);and 

(2) A numerically scaled indicating thermometer, 
accurate to + 3°F (+ 1.5°C), convenient to the sink 
for frequent checks of water temperature; and 

(3) Dish baskets of such size and design to permit 
complete immersion of the tableware, kitchenware, 
and equipment in the hot water. 



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(h) An approved testing method or equipment shall be 
available, convenient, and regularly used to test chemical 
sanitizers to insure minimum prescribed strengths. 

(i) After sanitization, all equipment and utensils shall be air 
dried. 

Histoiy Note: Authority G.S. 110-91: 

Eff. July I, 1991: 

Amended Eff. February 1, 1995: July 1. 1993: 

Temporary Amendment Ejf. December 1, 1999: April 15, 1998. 

.2815 WATER SUPPLY 

(a) Running water under pressure shall be provided in 
sufficient quantities to meet the needs of cooking, cleaning. 
drinking, toilets, and outside uses without producing water 
pressure lower than that required by the North Carolina 
Plumbing Code. 

(b) The water supply shall meet the requirements of 15A 
NCAC 18C or 15A NCAC 18A .1700 Protection of Water 
Supplies. Samples of water shall be collected by the 
Environmental Health Specialist and submitted to a state 
certitled laboratory for bacteriological analysis annually. Other 
tests of water quality, as indicated by possible sources of 
contamination, may be collected by the Environmental Health 
Specialist. 

(c) No cross-connections with an unapproved water supply 
shall exist. If potential back-flow conditions exist, an approved 
back-tlow prevention device shall be provided. 

(d) Water heating equipment that is sufficient to meet the 
maximum expected requirements of the child care center shall 
be provided. For child care centers not located in a residence. 
Capacity capacity and recovery rates of hot water heating 
equipment shall be based on number and size of sinks, capacity 
of dishwashing machines, capacity of laundering machines, 
diaper changing facilities, and other food service and cleaning 
needs. For child care centers licensed for fewer than 1 3 children 
and located in a residence, an existina water heater, or the 
equivalent replacement, shall be adequate if aj] required 
temperatures are maintained. Hot and cold water under pressure 
shall be easily accessible to all rooms where food is processed 
or handled, rooms in which utensils or equipment are washed, 
and other areas where water is required for cleaning and 
sanitizing, including lavatories and diaper changing areas. 

(e) Hot water heating equipment shall provide hot water at a 
minimum temperature of 1 30°F (54 °C) at the point of use when 
hot water is not used for sanitizing. When hot water is used for 
sanitizing, a minimum temperature of 140°F (60°C) shall be 
provided at the point of use. However, hot water to those areas 
accessible to children, including lavatories serving diaper 
changing areas, shall be no less than 90°F (32°C) and shall not 
exceed 1 10°F (43°C), except that for child care centers serving 
only school-aged children the 90°F (32°C) minimum 
temperature requirement shall not apply. 

Histoiy Note: Authority G.S. 110-91: 

Ejf. July /, 1991: 

Amended Ejf. Februaiy I, 1995; 



Temporary Amendment Eff. April 15, 1998: 

Amended Ejf. April 1, 1999: 

Temporary Amendment Eff. December 1_^ 1999. 

.2825 WALLS AND CEILINGS 

(a) The walls and ceilings, including doors and windows, of 
all rooms and areas shall be kept clean and in good repair. All 
walls shall be nonabsorbent and easily cleanable. 

(b) Ceilings in rooms in which food is stored, handled or 
prepared, utensil-washing rooms, and toilet rooms shall be 
non-absorbent and easily cleanable. Acoustic ceiling material 
may be used where ventilation precludes the possibility of 
grease and moisture absorption. For child care centers licensed 
for fewer than 1 3 children and located in a residence, ceilings of 
residential construction are acceptable if kept clean and in good 
repair. 

(c) Walls and ceilings, including doors and windows in areas 
accessible to children, shall be free of peeling, flaking, or 
chalking paint. 

(d) Walls and ceilings, including doors and windows, of all 
rooms and areas shall be free of identified lead poisoning 
hazards as defined under 15A NCAC 18A .3101. 

History Note: Authority G.S. 110-91: 
Eff. July 1, 1991: 

Amended Eff. April 1, 1999: July 23, 1992: 
Temporary Amendment Eff. December 1_^ 1999. 



TITLE 18 - SECRETARY OF STATE 

Rule-making Agency: Secretaiy of State 

Rule Citation: 18 NCAC 10 .0101, .0201, .0301 -.0309, .0701, 
.0801 -.0802. .0901 

Notice of Rule-making Proceedings was published in the 
Register on: March 15. 1999 

Effective Date of Temporary Rules: December 3, 1999 

Findings Reviewed by Beecher R. Gray: Not Approved. 
Submittal does not meet definition of temporaiy rule because 
previous temporaiy rules will expire on December 10, 1999. 

Authority for the rule-making: G.S. 66-58.10 

Proposed Effective Date of Permanent Rules: August 1, 2000 

Instructions on How to Demand a Public Hearing: A public 
hearing may be demanded by making such request, in writing, 
to the North Carolina Department of the Secretary of State, 
Electronic Commerce Section. PO Bo.x 29622. Raleigh, NC 
27626-0622. A request for such hearing must be received by the 
Electronic Commerce Section within 15 days after the date the 
Notice ofTe.xt is published. 



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Reason for Proposed Action: Temporary rules were published 
in the NC Register on March 15, 1999 and are scheduled to 
expire on December 10, 1999, prior to review by the Rules 
Review Commission. The Department of the Secretary of State 
adopted temporary rules for the purpose of administration of the 
Electronic Commerce Act. G.S. 66-58.1 et seq.. effective 
February 23. 1999. Since the adoption of the temporaiy rules 
referenced above, the Electronic Commerce Section of the 
Department has undertaken extensive efforts to develop revised 
rules that would enhance its ability to administer the Electronic 
Commerce Act. This process was time-consuming and extended 
given the significant changes necessary to the existing 
temporaiy rules so that administration of the act would be 
effective and efficient. It was also hindered by the relative 
absence of guidance on the topics of electronic commerce and 
digital signature authority and the need to develop uniformity 
among the states and the certification authority indiistiy. The 
newly-submitted temporary rules intended to replace the current 
rules go a long way toward supporting the uniformity that will 
be necessatyfor effective administration of the Ad. 

Comment Procedures: Oral and written comments regarding 
these rules may be submitted to the Department of the Secretary 
of State, Electronic Commerce Section, PO Box 29622, Raleigh, 
NC 27626-0622, phone (919) 801-2193. Email may be sent to 
ecomm@mail.secstate. state. nc. us. Comments must be received 
no later than January 14, 2000. 



Fiscal Impact 
State Local 



Sub. None 



TITLE 18 - SECRETARY OF STATE 

CHAPTER 10 - ELECTRONIC COMMERCE SECTION 

SECTION .0100 - GENERAL ADMINISTRATION 

.0101 HOW TO CONTACT THE ELECTRONIC 
COMMERCE SECTION 

The North Carolina Department of the Secretary of State 
administers the Electronic Commerce Act. The Secretary of 
State has designated the Electronic Commerce Section to 
administer the Act. The Electronic Commerce Section may be 
contacted by the following means: 

(1) Electronic mail messages (email) are welcome, and 
are an efficient means of communicating with the 
Electronic Commerce Section. Email may be sent to 
ecomm@ mail. secstate. state. nc. us. 

(2) Regular mail may be sent to the Electronic Commerce 
Section at the following address: Electronic 
Commerce Section. Department ot' the Secretary of 
State. Post Office Box 29622. 2 South Salisbury 
Street. Raleigh. NC 27626-0622. 

(3) Up-to-date contact information regarding the 
Electronic Commerce Section is contained on the 



Department of the Secretary of State'slnternet site at 
http://www.state.nc.us/secstate. 
(4) Suggestions regarding program administration are 
welcome. Suggestions for improving electronic 
commerce in North Carolina, these Rules, the 
Electronic Commerce Section, and the Electronic 
Commerce Act are always welcome. Suggestions 
may be sent to the Electronic Commerce Section at 
the addresses given in this Rule. 

Histoiy Note: Authority G.S. 66-58. 10; 

Temporary Adoption Eff. Februaiy 23, 1999: 

Codifier determined on November 23, 1999, that agency 

findings did not meet criteria for temporaiy rule: 

Temporary Adoinion Eff. December 3^ 1999. 

SECTION .0200 - DEFINITIONS 

.0201 APPLICABLE DEFINITIONS 

In addition to the definitions in the Electronic Commerce Act. 
Article 1 lA of Chapter 66 (G.S. 66-58.1 et seq.). the following 
apply in these Rules: 

(1) Affiliated Individual. An affiliated individual is the 
subject of a certificate that is associated with a 
sponsor approved by the Certification Authority (such 
as an employee affiliated with an employer). 
Certificates issued to affiliated individuals are 
intended to be associated with the sponsor and the 
responsibility for authentication lies with the sponsor. 

(2) Asymmetric Cryptosystem. A computer-based 
system that employs two different but mathematically 
related keys. They keys are computer-generated 
codes havin" the following characteristics: 



M 



either key can be used to electronically sign 
and/or encrypt data, such that only the other 
key in that key pair is capable of verifying the 
electronic signature and/or decrypting the 
signed data; and 



ib] 



01 



(4} 



01 



the keys have the property that, knowing one 

key, it is computationally infeasible to discover 

the other key. 
Authorized Certification Authority. A Certification 
Authority that has been issued a Certification 
Authority license by the North Carolina Department 
of the Secretary of State to issue certificates that 
reference these Rules. 

Certification Authority Revocation List. A time- 
stamped list of revoked certification Authorities 
digitally signed by a Certification Authority or the 
Electronic Commerce Section. 
Certificate. A record which: 

identifies the certification authority issuing it; 

names or identifies its subscriber; 



la) 
ib] 
(£] 

(d] 



contains a public key that corresponds to a 
private key under the control of the subscriber; 
identifies its operational period or period of 
validity; 



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1047 



TEMPORARY RULES 



(e) contains a certificate serial number and is 
digitally signed by the Certification Authority 
issuing it; and 

(£1 conforms to the ITU/ISO X.509 Version 3 
standards or other standards accepted under 
these Rules. As used in these Rules the term 
"Certificate" refers to certificates that expressly 
reference these Rules in the "Certificates 
Policy" filed for an X.509 y.3 certificate. 

(6) Certificate Manufacturing Authority. An entity that 
is responsible for the manufacturing and delivery of 
certificates signed by a Certification Authority, but is 
not responsible for identification and authentication of 
certificate subjects (i.e.. a Certificate Manufacturing 
Authority is delegated the certificate manufacturing 
task by a Certification Authority). 

(7) Certificate Revocation List. A Certification Authority 
digitally signed, time-stamped list of revoked 
certificates. 

(8) Certification Authority. A Certification Authority is 
an entity authorized by the Secretary of State to 
facilitate electronic commerce. A Certification 
Authority is responsible for authorizing and causing 
certificate issuance. A Certification Authority can 
perform the functions of a Registration Authority and 
a Certificate Manufacturing Authority, or it can 
delegate or outsource either of these functions. A 
Certification Authority vouches for the connection 
between an entity and that entity's electronic 
signature. A Certification Authority performs two 
essential functions: 

(a) First, it is responsible for identifying and 
authenticating the intended subscriber named 
in a certificate, and verifying the subscriber 
possesses the private key corresponding to the 
public key listed in the certificate; and 

(b) Second, the Certification Authority actually 
creates (or manufactures) and digitally signs 
the certificate. The certificate issued by the 
Certification Authority represents the 
Certification Authority's statement as to the 
identity of the person named in the certificate 
and the binding of that person to a particular 
public-private key pair. 

(9) Certification Practice Statement. A "Certification 
Practice Statement" is documentation of the practices, 
procedures, and controls employed by a Certification 
Authority issuing, suspending, or revoking certificates 
and providing access to same. A Certification Practice 
Statement shall contain, at a minimum, detailed 
discussions of the following topics: 

(a) technical security controls. including 
cryptographic modules and management; 

(b) physical security controls; 

(c) procedural security controls; 

(d) personnel security controls; 

(e) repository obligations, including registration 



management 



(10) 



OH 



(12) 



Oil 



(14) 



(15) 



protection. 

management; and 
(f) financial responsibility 
Electronic Commerce Act 



subscriber 
and certificate 



ntormation 
revocation 



The North Carolina 



Electronic Commerce Act. G.S. Chapter 66. Article 
1 1 A. An Act to facilitate electronic commerce with 
and by North Carolina public agencies by recognizing 
the validity of electronic signatures and authorizing 
the Secretary of State to regulate electronic signatures 
and certification authorities. 

Electronic Commerce Section. Component of the 
North Carolina Department of the Secretary of State 
responsible for reviewing Certification Authority 
license applications and administering the Electronic 
Commerce Act in North Carolina. 
Electronic signature. Any identifier or authentication 
technique attached to or logically associated with an 
electronic record intended by the party using it to 
have the same force and effect as the party's manual 
signature. 

Federal Information Processing Standards. Federal 
Standards prescribing specific performance 
re quirements, practices, formats, communications 
protocols, etc. for hardware, software, data, 
telecommunications operation, etc. Federal agencies 
are expected to apply these standards unless a waiver 
has been granted. 

Internet Engineering Task Force. The Internet 
Engineering Task Force is a large, open international 
community of network designers, operators, vendors. 
and researchers concerned with the evolution of the 
Internet architecture and the smooth operation of the 
Internet. 



ITS Security Director. The ITS Security Director of 
North Carolina State government as designated by the 
Chief Information Officer for North Carolina State 
Government. 

(16) ITU/ISO X.509 Version 3 standards. Version three of 
the X.509 standards promulgated by the International 
Telecommunications Union and the International 
Organization for Standardization. 

(17) Key pair. Two mathematically related keys, having 
the properties that one key can be used to encrypt a 
message that can only be decrypted using the other 
key, and even knowing one key, it is computationally 
infeasible to discover the other key. 

(18) Object Identifier. An object identifier is a specially 
formatted number that is registered with an 
internationally recognized standards organization. 

(19) Operational Period of a Certificate. The operational 
period of a certificate is the period of its validity. It 
would typically begin on the date the certificate is 
issued (or such later date as specified fn the 
certificate), and end on the date and time it expires as 
noted fn the certificate or as earlier revoked or 
suspended. 



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14:12 



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(20) 

(21) 
(22) 



123] 
(24) 



(25) 
(26) 
(27) 



(28) 



(29) 



(30) 
(3ii 



(32) 
(33) 



PKIX. An Internet Engineering Task Force Working 
Group developing technical specifications for a public 
key infrastructure components based on X.509 
Version 3 certitlcates. 

Private Key. The key of a key pair used to create a 
digital signature. This key must be kept a secret. Itis 
also known as the confidential key or secret key. 
Public Key. The key of a key pair used to verify a 
digital signature. The public key is made available to 
anyone who will receive digitally signed tnessages 
from the holder of the key pair. The public key is 
usually provided in a Certification Authority issued 
certificate and is often obtained by accessing a 
repository. A public key is used to verify the digital 
signature of a message purportedly sent by the holder 
of the corresponding private key. It is also known as 
the published key. 

Public Key Cryptography. A type ot' cryptographic 
technology employing an asymmetric cryptosystem. 

Registration Authority. An entity responsible for 
identification and authentication of certificate 
subjects, but that does not sign or issue certificates 
(i.e., a Registration Authority is delegated certain 
tasks on behalf of a Certification Authority). 
Relying Party. A recipient oi' a digitally signed 
message who relies on a certificate to verify the 
digital signature on the message. 
Repository. A trustworthy system for storing and 
retrieving certificates and other information relating 
to those certificates. 

Repository Services Provider. An entity that 
maintains a repository accessible to the public, or at 
least to relying parties, for purposes of obtaining 
copies of certificates and/or verifying the status of 
such certificates. 

Responsible Individual. A person designated by a 
sponsor to authenticate individual applicants seeking 
certificates on the basis of their affiliation with the 
sponsor. 

Revoke A Certificate. To prematurely end the 
operational period of a certificate from a specified 
time forward. 

Secretary. The North Carolina Secretary of State. 
Sponsor. An organization with which a subscriber is 
affiliated (e.g.. as an employee, user of a service, 
business partner, customer, etc.). 
Subject. A person whose public key is certified in a 
certificate. Also referred to as a "subscriber". 
Subscriber. The person to whom a certificate is 
issued. A person who: 

(a) is the subject named or identified in a 
certificate issued to such person; and 

(b) holds a private key that corresponds to a public 
key listed in that certificate; and 

(c) to whom digitally signed messages verified by 
reference to such certificate are to be 
attributed. See "subject". 



(34) 
(35) 



(36) 



OH 



(38) 



(39) 



Suspend a certificate. To temporarily suspend the 
operational period of a certificate for a specified time 
period or from a specified time forward. 
Transaction. An electronic transmission of data 
between an entity and a public agency, or between 
two public agencies, including, but not limited to 
contracts, filings, and other legally operative 
documents not specifically prohibited in the 
Electronic Commerce Act. 

Trustworthy System. Computer hardware, software, 
and procedures that: 

(a) are reasonably secure from intrusion and 
misuse; 

(b) provide a reasonable level of availability, 
reliability, and correct operation; 

(c) are reasonably suited to performing their 
intended functions; and 

(d) adhere to generally accepted security 
procedures. 

Valid Certificate. A Valid certificate is one that: 



(a) a Certification Authority has issued; 

(b) the subscriber listed in it has accepted; 

(c) has not expired; and 

(d) has not been suspended or revoked. 

A certificate is not valid until it is both issued by a 
Certification Authority and accepted by the 
subscriber. 



X.500. A directory standard/protocol for connecting 
local directory services to form one distributed global 
directory. X.500 is an OSI (Open System 
Interconnection) protocol, named after the number of 
the ITU (International Telecommunications Union ; 
a United Nations Specialized Agency) CCITT 
(International Telegraph and Telephone Consultative 
Committee) Recommendation document containing 
its specification. 

X.509. A standard/protocol adopted by the 
International Telecommunication Union (formerly 
known as the International Telegraphy and Telephone 
Consultation Committee). For purposes of these 
rules, all references to X.509 shall be construed as 
referring to version 3. Compliance with X.509 
versions I or 2 shall not be construed as compliance 
with X.509. 



Histoiy Note: Authohty G.S. 66-58.]0(a)(I); 
Teinporaiy Adoption Ejf. February 23. 1999: 
Codifier determined on November 23. 1999. that agency 
findings did not meet criteria for temporaiy ride: 
Temporaiy Adoption Eff. December 3^ 1999. 

SECTION .0300 PUBLIC KEY TECHNOLOGY 

.0301 PUBLIC KEY TECHNOLOGY LICENSING, 
FEES, RENEWAL 

(a) To be considered for licensure under this subsection, a 
Certification Authority shall utilize certificate-based public key 



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1049 



TEMPORAR Y RULES 



cryptography. 

(b) Any applicant seeking licensure must demonstrate 
compliance with the North Car(ilina Electronic Commerce Act, 
G.S. 66. Article 1 1 A. and these Rules. 

(c) To request licensure, a Certification Authority shall 
provide the Electronic Commerce Section with a copy of its 
current Certification Practice Statement and most recent reports 
ot' compliance audit(s) as required by 18 NCAC K) .0303(13). 

(d) A Certification Authority shall adhere to its Certification 
Practice Statement. If a Certification Authority modifies its 
Certification Practice Statement, it shall proy ide an updated copy 
of the Certification Practice Statement to the Electronic 
Commerce Section as soon as is practicable, and no later than 
the date the updated Certification Practice Statement is put into 
operation. As a condition of continued licensure, the Electronic 
Commerce Section may require the Certification Authority to 
undergo an audit to document compliance with its updated 
Certification Practice Statement and these Rules. 

(e) An initial licensing fee of two thousand dollars ($2,000 
US) shall accompany an initial application. 

(f) A renewal fee of two thou.sand dollars ($2.000 US) shall 
accompany an application for renewal by a licensed Certification 
Authority. 

(g) A license issued by the Electronic Commerce Section 
pursuant to this section shall expire one year after its effective 
date, unless timely renewed. 

(h) Financial Responsibility. 

(1) As precondition of licensure a Certification Authority 
shall obtain a bond issued by a surety company 
authorized to do business in North Carolina. A copy 
of the bond shall be filed with the Electronic 
Commerce Section prior to licensure. The amount of 
the bond shall not be less than twenty-five thousand 
dollars ($25.000 US). The bond shall be in favor of 
the State of North Carolina. The bond shall be 
payable for any penalties assessed by the Electronic 
Commerce Section pursuant to these rules and for any 
losses the State encounters resulting from a 
Certification Authority'sconduct of activities subject 
to the Electronic Commerce Act or arising out of a 
yiolation of the Electronic Commerce Act or any Rule 
promulgated thereunder; 

(2) As precondition of licensure a Certification Authority 
shall obtain indemnity insurance coverage (e.g. 
"errors and omissions" and/or "cyber coverage" 
and/or similar coverage) to protect subscribers, 
relying parties and the State for any losses resulting 
from the Certification Authority'sconduct of activities 
subject to the Electronic Commerce Act or arising out 
of a violation of the Electronic Commerce Act or any 
Rule promulgated thereunder. Indemnity coverage 
shall be obtained and maintained in the amount of not 
less than one hundred thousand dollars ( $ 1 00.000 US ) 
per occurrence and not less than one million dollars 
($1.000.000 US) for all occurrences; 

(3) The failure of a Certification Authority to 
continuously maintain this surety bond and indemnity 



insurance coverage may be the basis for revocation or 
suspension of its license. 

Histoiy Note: Authority G.S. 66-58.3; 66-58.10(a)(2): 
Temporary Adoption EJf. February 23, 1999; 
Codifier determined on November 23, 1999, that agency 
findings did not meet criteria for temporary rule; 
Temporary Adoption Eff. December 3, 1999. 

.0302 PUBLIC KEY TECHNOLOGY: 
CERTIFICATION AUTHORITY: 
CERTIFICATE ISSUANCE AND 

MANAGEMENT - OVERVIEW 

(a) Overview. These Rules specify minimum requirements 
for issuance and management of certificates that may be used in 
verifying digital signatures. The digital signatures may be used 
on categories of electronic communications specified as suitable 
applications in 18 NCAC 10 .0302(2)(e). Each item in these 
Rules must be specifically addressed by the Certification 
Authority in the Certification Authority 'sCertification Practice 
Statement filed with the North Carolina Department of the 
Secretary of State at the time the Certification Authority submits 
an application for licensure or renewal. 

(b) Community and Applicability. 

(1 ) Certification Authorities. These Rules are binding on 
each licensed Certification Authority issuing 
certificates identifying them, and govern Certification 
Authority performance with respect to all certificates 
it issues referencing the Rules. Specific Certification 
Authority Practice Statements and procedures 
implementing the requirements of these Rules shall be 
set forth in the Certification Authority Certification 
Practice Statement; 

(2) Certification Authorities Authorized to Issue 



Certificates Under These Rules: 
Authority may 



Any Certification 



i3j 



issue certificates identifying these 
Rules if licensed in the State of North Carolina and 
the Certification Authority agrees to be bound by and 
comply with the undertakings and representations of 
these Rules with respect to such certificates. Issuance 
of a certificate referencing this Policy shall constitute 
issuing the agreement of the Certification Authority to 
be bound by terms of the Rules for all certificates 
referencing them; 

Subscribers. A Certification Authority may issue 
certificates that reference these Rules to the following 
classes of subscribers: 

(A) individuals (unaffiliated); 

(B) individuals associated with a sponsor 
recognized by the Certification Authority 
( "affiliated individuals"), proyided the sponsor 
is the subscriber of a valid certificate issued by 
the Certification Authority in accordance with 
these Rules; 

(C) public agencies, as defined in G.S. 66-58.2; 
and 

(D) organizations and businesses qualified as legal 



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14:12 



TEMPORARY RULES 



entities; 

(4) Relying Parties. These Rules benefit the following 
persons, who may rely on certificates issued to others 
referencing them ("Qualified Relying Parties"): 

(A) individuals intending to engage in a transaction 
with a public agency. 

(B) public agencies, as defined in G.S. 66-58.2; 

(C) organizations and businesses, qualified as legal 
entities, engaged in a transaction with a public 
agency: and 

(D) other parties to a transaction with the entity and 
a public agency; 

(5) Suitable Applications. Certificates referencing this 
policy are intended to provide a level of identity 
binding assurance and the protection ot' document 
encryption, and are typically suitable for: 

(A) System Access/Systems Security 

ijj Verifying the identity of electronic mail 
correspondents for non-critical 
communications; 
(ii) Obtaining access to databases. 

applications and systems; 
(iii) Message/document encryption for 
protection of contents/identities where 
appropriate; 

(B) Digital Signature Activity 

£i] Commerce involving various goods or 
services with various values; 



(ii) Obtaining personal data relating to the 
subscriber; 

(C) Message/Document Encryption: Documents 
encrypted to protect contents (e.g. privacy of 
subject); 

(D) Some sample applications of these Rules: 

(i) Computing applications providing 
access to the certificate holder's own 
personal information; 

(ii) Request and distribution of text 
information or other types of 
copyrighted content for which fees are 
charged or subscriptions are required; 

(iii) Verifying the identity of communicating 
parties; 

(iv) Verifying signatures on contracts, 
government benefits statements, and 
other documentation; 
(y) Signing of electronic messages; e.g. 
official reports, employee leave and 
travel reporting, tax withholding, etc.; 
and 

(vi) Secure transport of individual, patient 
specific medical/other privileged 
information over public networks. 
(6) Prohibited Applications. (Reserved) 

Histoiy Note: Authority G.S. 66-58. 10: 

Codifier determined on November 23, 1 999, agency findings did 



(2) 

14} 
15] 



16} 



not meet criteria for temporary rule; 
Tempo ran- Adoption Eff. December ^ 1999. 

.0303 PUBLIC KEY TECHNOLOGY:CERTIFICATE 
POLICY GENERAL PROVISIONS 

(a) Certification Authority Obligations. The Certification 
Authority is responsible for al] aspects of certificate issuance 
and management, including control over: 

(1 ) the application/enrollment process; 

the identification and authentication process; 
the actual certificate manufacturing process; 
certificate publication; 

certificate suspension and revocation, publication of 
the Certificate Revocation List and Certification 
Authority Revocation Lists, as pertinent; 
certificate renewal; 

ensuring that all aspects of the certification Authority 
services and Certification Authority operations and 
infrastructure related to certificates issued under these 
Rules are performed in accordance with the 
requirements, representations, and warranties of these 
Rules; and 

(8) Delivering certificate updates and revocation 
transactions to the NC ITS directory, where pertinent. 

(b) Representations by Certification Authority. By issuing a 
certificate referencing these Rules, a Certification Authority 
certifies to subscriber and ah Qualified Relying Parties (who 
reasonably and in good faith rely on a certificate's information 
during its operational period in accordance with these Rules) 
that the Certification Authority has taken reasonable steps to 
verify certificate information unless otherwise noted in its 
Certification Practice Statement that: 

( 1) the certification authority has issued, and will 
manage, the certificate in accordance with these 
Rules; 

(2) the Certification Authority has complied with the 
requirements of these Rules and its applicable 
Certification Practice Statement when authenticating 
the subscriber and issuing the certificate; 

(3) there are no misrepresentations of fact in the 
certificate known to the Certification Authority, and 
the Certification Authority has taken reasonable steps 
to verify additional information in the certificate 
unless otherwise noted in its Certification Practice 
Statement; 

(4) subscriber-provided information in the certificate 
application has been accurately transcribed to the 
certificate; and 

(5) the certificate meets all material requirements of these 
Rules and the Certification Authority's certification 
practice statement. 

(c) Registration Authority and Certificate Manufacturing 
Authority Obligations: The Certification Authority shall be 
responsible for performing all identification and authentication 
functions and all certificate manufacturing and issuing functions. 
However, the Certification Authority may delegate performance 
of these obligations to an identified Registration Authority 



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1051 



TEMPORAR Y RULES 



and/or Certificate Manufacturirm Authority, provided the 
Certification Authority remains primarily responsible for 
performance of those services by such third parties in a manner 
consistent with requirements of these Rules. 

(d) Repository Obligations: The Certification Authority shall 
be responsihle for providing a repository, performing/providing 
certificate updates as required and performing all associated 
functions. However, the Certification Authority may delegate 
performance of this obligation to an identified Repository 
Services Provider, provided the Certification Authority remains 
primarily responsible for performance of those services by such 
third party in a manner consistent with requirements of these 
Rules. 

(e) Subscriber Obligations. In aU cases, the Certification 
Authority shall require the subscriber to enter an enforceable 
contractual commitment for the benefit of Oualified Relying 
Parties obligating the subscriber to: 



ill 

12] 

Ml 



take reasonable precautions to prevent any loss, 
disclosure, or unauthorized use of the private key; 
acknowledge that by accepting the certificate the 
subscriber is warranting all information and 
representations made by the subscriber included in the 
certificate are true; 

use the certificate exclusively for authorized and legal 
purposes, consistent with these Rules; 
immediately contact the Certification Authority and 
instruct the Certification Authority to revoke the 
certificate promptly upon any actual or suspected loss. 
disclosure, or other subscriber private key 
compromise. 

(f) Relying Party Obligations. A Qualified Relying Party has 
a right to rely on a certificate referencing this Policy only if the 
certificate was used and relied upon for lawful purposes and 
under circumstances where: 

(1) the reliance was reasonable and in good faith in light 
of all circumstances known to the relying party at the 
time of reliance; 

(2) the purpose for which the certificate was used was 
appropriate under these Rules; and 

(3) the relying party checked the certificate status 
certificate prior to reliance, or a check of the 
certificate's status would have indicated the certificate 
was valid. 

(g) Liability. (Reserved) 

th] Financial Responsibility. See 18 NCAC 10 .0301(8). 
(i) Interpretation & Enforcement. 

(1) Governing Law. The laws of the State of North 
Carolina shall govern the enforceability, construction, 
interpretation, and validity of these Rules. 

(2) The holders of North Carolina Certification Authority 
licenses are not guaranteed any business by public 
agencies m North Carolina. All other state laws. 
policies, and procedures required to engage [n 
business with public agencies in North Carolina must 
be complied with by the Certification Authority and 
public agencies. 
Dispute Resolution Procedures. Disputes between or 



among subscribers, trusted third parties or relying 
parties shall be reduced to writing and delivered to 
each party. Parties shall negotiate in good faith and 
use reasonable efforts to resolve such disputes. 
Parties shall not resort to any formal proceedings to 
resolve such disputes until they have reasonably 
determined that a negotiated resolution js not 
possible. 
(j} Fees. A Certification Authority shall not impose any fees 

for reading these Rules or its Certification Practice Statement. 

A Certification Authority may charge access fees on certificates. 

certificate status information, or certificate revocation lists. 

subject to agreement between the Certification Authority and 

subscriber, and in accordance with a fee schedule published by 

the Certification Authority in its Certification Practice Statement 

or otherwise. 



(k) Publication & Repositories: 
(1) Publication of Certification Authority Information. 
Each authorized Certification Authority shall operate 
a secure online repository available to Qualified 
Relying Parties. The repository shall contain: 
(A) issued certificates that reference these Rules; 



m 
mi 

IE) 



a Certificate Revocation List or on-line 
certificate status database; 



(2} 



01 



the Certification Authority's certificate for its 
signing key; 

past and current versions of the Certification 

Authority's Certification Practice Statement; 

a copy of these Rules; and 

other relevant information relating to 

certificates referencing these Rules. 

Frequency of Publication. All information to be 

published in the repository shall be published 

promptly after such information is available to the 

Certification Authority. In no case shall more than 24 

hours pass between certification authority awareness 

of a change and the Certification Authority publishing 

of the change. Certificates issued by the Certification 

Authority referencing these Rules will be published 

promptly u pon acceptance of such certificate by the 

subscriber. Certificate revocations and suspensions 

will be published contemporaneously with the act of 

revocation or suspension. Information relating to 

revocation or suspension of a certificate and will be 

published in accordance with 18 NCAC 10 

.0305(6)(b) and 10 .0305( 10). 

[U Access Controls. The repository will be available to 

Qualified Relying Parties and subscribers 24 hours per day. 7 

days per week, subject to reasonable, published, scheduled 

maintenance and the Certification Authority's then-current terms 

of access. A Certification Authority shall not impose any access 

controls on these Rules, the Certification Authority's certificate 

for its signing key, and past and current versions of the 

Certification Authority's Certification Practice Statement. A 

Certification Authority may impose access controls on 

certificates, certificate status information, or Certificate 

Revocation Lists at its discretion, subject to agreement between 



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14:12 



TEMPORAR Y RULES 



the Certification Authority and subscriber, in accordance with 
provisions published in its Certification Practice Statement or 
otherwise, 
(m) Required Comphance Audits: 

(1 ) The Certification Authority must submit to audit to 
determine its stabihty. prospects for longevity and 
adequacy of its security practices and conditions. The 
audits must result in unquahfied comphance reports. 
When a Certification Authority is licensed in North 
Carolina based on a reciprocity agreement between 
North Carolina and another state, the Certification 
Authority may submit certified copies of audit reports 
required by the other jurisdiction. After review by the 
Electronic Commerce Section, audit reports may he 
determined to meet North Carolina Certification 
Authority audit requirements. 

(2) A Certification Authority shall _ 

Certification Practice Statement. If a Certification 
Authority modifies its Certification Practice 
Statement, it shall provide an updated copy of the 
Certification Practice Statement to the Electronic 
Commerce Section as soon as practicable and no later 
than the date the updated Certification Practice 
Statement is put into operation. At the discretion of 
the Electronic Commerce Section, the Certification 
Authority may be required to undergo additional/other 
audits for license renewal. 

(3) Stability and Longevity Prospects Audit: 
(A) Before initial approval as a 

Certification Authority, the Certification 
Authority (and each Registration Authority. 
Certificate Manufacturing Authority, and 
Repository Services Provider, as applicable) 
shall submit to audit by an independent 
Certified Public Accounting firm. The audit 
must address the American Institute of 
CertifiedPublic Accountants (AICPA) Section 
341. "TTie Auditor's Consideration of an 
Entity's Ability to Continue as a Going 
Concern". 



(B) 



iC] 



mi 



TTie audit must produce an unqualified report 
from the CPA firm to the Certification 
Authority. A certified copy of the audit report 
must be attached by the Certification Authority 
to the application for a new Certification 
Authority license or renewal license, and 
submitted to the Electronic Commerce Section. 
As a condition of continued licensure, the 
Electronic Commerce Section may require the 
Certification Authority to undergo audit to 
document compliance with expectations for 
secure operations, an updated Certification 
Practice Statement, or to document continuing 
compliance with the ITU/ISO X.509 Version 3 
standards and these Rules. 
A Certification Authority operated by an 
Agency of the State of North Carolina is 



exempt from this requirement. 
(4) Security Audit. The purpose of a security audit is to 
verify: 

(A) The Certification Authority has in place a 
secure system assuring quality of Certification 
Authority Services provided; and 

(B) the Certification Authority's system complies 
with all security requirements of these Rules. 
the Certification Authority's Certification 
Practice Statement and ITU/ISO X.509 
Version 3 standards. 

Before initial approval as a licensed Certification 
Authority, and thereafter at least once every year, the 
Certification Authority shall submit to a security 
compliance audit by an independent nationally 
recognized security audit firm approved by the 
adhere to its Electronic Commerce Section. The audit must 

evidence compliance with Federal Information 

Processing Standards 140-1 "Security: Cryptographic 

Modules" Level 2 and TSEC (The Orange Book) C2 

criteria or comply with contemporary Certification 

Authority security criteria as expressed in terms of the 

"Common Criteria" ; ISO 15408-1:1999. The 

security audit firm must be qualified to perform a 

security audit on a Certification Authority and it must 

have significant knowledge and/or experience in 

Public Key Infrastructure application and 

cryptographic technologies. A certified copy of the 

licensed current unqualified security audit report must be 

attached to an application for a new certification 

authority license or renewal license, and submitted to 

the NC Department of Secretary of State. Electronic 

Commerce Section. 

(n) Confidentiality Policy. Subscriber consent must be 

obtained for each incident of disclosure and for each item of 

information unless required otherwise by law. The Certification 

Authority may not seU or exchange information in any 

circumstance that is not specifically allowed by these Rules or 

otherwise required by law. 

( 1 ) A Certification Authority may not use data gathered 
in fulfilling its Certification Authority role for any 
other purpose. A Certification Authority shall not 
gather information beyond that necessary to 
authenticate a subscriber nor shall it use information 
gathered in its Certification Authority role to 
assemble further information about subscribers; 

(2) Under no circumstance shall a Certification Authority 



(or any Registration Authority. Repository Services 
Provider. Certificate Manufacturing Authority) have 
access to the signing private key(s) [versus encryption 
kev(s)l of any subscriber to whom it issues a 
certificate referencing these Rules; except for initial 
creation of the signing/secret key where the key is not 
accessed and no enduring record is made of the key, 
(o) Information Not Considered Confidential. 
(1 ) Information appearing on certificates is not 
confidential. 



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December 15, 1999 



1053 



TEMPORAR Y RULES 



(2) Disclosure of Certificate Revocation/Suspension 
Information. Information regarding tiie revocation or 
suspension status of a certificate is not confidential 
and is disclosed in the normal course of public key 
infrastructure activity. 

(3) Release to law enforcement officials. (Reserved) 

(4) Release as part of civil discovery. (Reserved) 

(5) Any information may be disclosed upon owner's 
request. 

(6) Other information release circumstances. (Reserved) 



ill 



for name uniqueness. If necessary, additional numbers or letters 
may be appended to the real name to ensure the name's 
uniqueness within the domain of certificates issued by the 
Certification Authority and detailed in the Certification Practice 
Statement. 



ill 



History Note: Authority G.S. 66-58. 10; 
Codifier determined on November 23, 1999, that agency 
findings did not meet criteria for temporary rule; 
Temporary Adoption Eff. December 3^ 1999. 

.0304 PUBLIC KEY TECHNOLOGY: 

IDENTIFICATION AND AUTHENTICATION 

(a) Initial Registration: 
(1) Subject to requirements of this rule certificate 
applications may be communicated from the applicant 
to Certification Authority or Registration Authority, 
and authorizations to issue certificates may be 
communicated from a Registration Authority to the 
Certification Authority, electronically via E-mail or a 
web site, provided all communication is secured by 
SSL or a similar security protocol, by first class U.S. 
Mail or similar service; 

North Carolina deploys two levels/classes of 
authentication certificate: 

(A) A North Carolina Strong Authentication 
Certificate application requires the subscriber 
to appear before the Certification Authority or 
Registration Authority in person or for all 
identification documents to be notarized and (2) 
delivered by a trustworthy method (for 
example. US Mail, courier, etc.); or 

(B) A North Carolina Basic Authentication 



Certificate application may be accomplished 
without subscriber personal appearance and 
without notarized documents. 

(b) Types of Names. The subject name used for certificate 
applicants shall be the X.509 Distinguished Name. The name 
shall be unique for each entity certified by a Certification 
Authority. A Certification Authority may issue more than one 
certificate with the same subject name for the same subject 
entity. 

(c) Name Meanings. The subject name listed in a certificate 
must have a reasonable association with the authenticated name 
of the subscriber. In the case of an individual, this should be a 
combination of first name and/or initials and surname. In the 
case of an organization, the name should reflect the legal name 
of the organization and/or unit. 

(d) Rules for Interpreting Various Name Forms. (Reserved) 

(e) Name Uniqueness. The subject name listed in a certificate 
shall be unambiguous and unique for al] certificates issued by 
the Certification Authority and shall conform to X.500 standards 



(f) Verification of Key Pair. The Certification Authority shall 
establish that the applicant is in possession of the private key 
corresponding to the public key submitted with the application 
in accordance with an appropriate secure protocol, such as that 
described in the Internet Engineering Task Force Public Key 
Infrastructure Certificate Management Protocol or through other 
means. 



(g) Authentication of an Organization. An organization can 
be issued a North Carolina Strong Authentication Certificate. 
An organization cannot be issued a North Carolina Basic 
Authentication Certificate. 



Identification. A Certification Authority shall be 
presumed to have confirmed that the prospective 
subscriber organization is the organization to be listed 
in a certificate where the Certification Authority has 
assured by investigation: 
(A) The organization exists and conducts business 

at the address listed in the certificate 

application; 

A duly authorized representative of the 

applicant organization signed the certificate 

application; 

The information contained in the certificate 



IB] 

iC] 
ID} 



application is correct; 

If required by State law, the organization is 

authorized to transact business and is in "good 

standing" with the Corporations Division of the 

North Carolina Department of the Secretary of 

State. 

When authenticating an organizational applicant, the 

Certificate Authority or Registration Authority shall 

require the following elements of information from 

the applicant on a notarized affidavit: 

(A) Organization Name; 

(B) Street address and mailing address, if different; 

(D) State; 

(E) Zi£, 

(F) Tax Payer Identification Number/Employer 
Identification Number (EIN); 

(G) Corporate Identification Number (Issued by 
Secretary of State); 

(H) Date of incorporation or creation; 
(I) State or country of incorporation or creation; 

(J) Telephone number (optional); 

(K) E-mail address (optional); 

(L) Post data element (e.g. password, etc.) to be a 
secret shared with the Certification 
Authority/Registration Authority and used later 
for authentication in the absence of the digital 
signature. This element could be used along 
with additional information to authenticate a 



1054 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



TEMPORARY RULES 



(Ml 



request for certificate revocatie^ns; 
Name of officially authorized agent. 



if 



Oi 



applicable. 
Authentication and Confirmation 
conducting; its review 
Certification 



Procedure. In 
the 



and investigation 

Authority shall 



review official 



Ml 
ilD 



government records and/or engage the services of a 
reputable third party vendor of business information 
to do so. The Certification Authority or third party 
review will provide validation information concerning 
each organization applying for a certificate, including 
legal company name, type of entity, year of 
formation, names of directors and officers, address, 
telephone number, and good standing in the 
jurisdiction where the applicant was incorporated or 
otherwise organized. 
Personal Presence. (Reserved) 
Authentication of Individual - No Affiliation: 



An 



unaffiliated individual may be issued a North Carolina Strong 
Authentication Certificate. North Carolina Basic Authentication 
Certificate, or both. In determining the type of certificate 
required, agencies should evaluate the application's sensitivity 
and nature of business with which the certificate holder will be 
associated. Based on the evaluation, a NC Basic Authentication 
Certificate may be appropriate. In other cases, it may be 
appropriate to require a North Carolina Strong Authentication 
Certificate. 

( 1 ) Identification: North Carolina Strong Authentication 
Certificate. A Certification Authority shall be 
presumed to have confirmed that the prospective 
subscriber is the person to be listed in a certificate 
where the Certification Authority has been presented 
with documents consisting at least of: two pieces of 
identification when authenticating an unaffiliated 
individual applicant for a North Carolina Strong 
Authentication Certificate. At least one piece of 
identification shall be a current federal or state 
government-issued picture-type identification such as 
a military or government identification card, driver's 
license, or similar identification dticument issued 
under authority of another country, or passport. The 
Certification Authority or Registration Authority shall 
initial, date and archive copies of identification used 
to establish the subscriber's identity. 

(2) Authentication for a North Carolina Strong 
Authentication Certificate. Authenticating an 
unaffiliated individual applicant, the Certification 
Authority or Registration Authority shall require the 
following elements of information from the applicant 
on a notarized affidavit: 

(A) Last name (family name); 
First name (given name); 
Middle Name(s); 

Street address and mailing address, if different; 
Citi- 
State; 



mi 

(E) 
lEl 

lei 



O) 



(4) 



IK) 

ill 

(M) 



Social Security Number (SSN). national 
identification number or passport number; 
Driver'slicense number, or state identification 
card number; 
Date of birth; 
Place of birth; 



Telephone number (optional); 
E-mail address (optional); 
Post data element (e.g. mother's maiden name, 
password, etc.) to be used later for 
authenticating an individual in the absence of 
their digital signature. This element could be 
used along with additional information to 
authenticate a request for certificate 
revocations; 



(O) Name of officially authorized agent, if 

applicable. 
Authentication for a North Carolina Basic 
Authentication Certificate. Certification Authorities or 
Registration Authorities shall require a notarized 
affidavit from the applicant 'spersonnel officer, signed 
by the applicant including: 
(A) Last name (family name); 

First name (given name); 

Middle name(s); 

Street address and mailing address, if different; 

Cit^ 

State; 



im 

IE] 
(F) 
(G) 
iH) 

ID 

m 

IK] 
iU 
(Mi 

IN] 



Zip; 

Social Security Number (SSN). national 

identification number or passport number; 

Driver'slicense number, or state identification 

card number; 

Date of birth; 

Place of birth; 

Business Telephone number (optional); 

Business E-mail address (optional) as assigned 

by agency; 

Post data element (e.g. mother's maiden name, 

password, etc.) to be used later for 

authenticating an individual in the absence of 

their digital signature. This element could be 

used along with additional information to 

authenticate a request for certificate 

revocations; 

Name of olTicially authorized agent, if 

applicable; 

Beginning date of employment; 



Zip; 



(O) 

in 

(Q) Ending date of employment {if known). 
Investigation and Confirmation. Verification of the 
name and SSN and the Name and Driver' sLicense (or 
ID Number) data elements may be accomplished via 
checks with the Social Security Administration and 
the appropriate state motor vehicle administration. 
Verification of the name and address data elements 
may be accomplished through access to either a 
trusted commercial or governmental data source. The 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1055 



TEMPORAR Y R ULES 



address confirmation data sources may consist of 
eitiier online databases or local business records (e.g.. 
a bank's customer records, the U.S. Postal Service, 
state motor vehicle department records, state 
personnel office, etc.). 
(5) Personal Presence. Authentication of an unaffiliated 
individual requires the applicant must either: 

(A) personally present himself or herself to a 
Registration Authority to be authenticated prior 
to certificate issuance; or 

(B) securely deliver signed and notarized copies of 
the requisite identification to the Certification 
Authority [in which case, once notarized 
copies are delivered parties may communicate 
electronicallyl. Where the applicant delivers 
notarized copies of identification to the 
Certification Authority, authentication of such 
identification will be confirmed through the 
use of a shared secret [such as a personal 
identification numberl. The shared secret is 
separately communicated in a trustworthy 
manner to the applicant and included with the 
documents delivered as part of the certificate 
application process. 

(C) an individual may meet expectations for 
personal presence by an attorney-in-fact, 
trustee or other court appointed fiduciary. 

ii] Authentication of Individual ; Affiliated Certificate. 
( 1 ) Identification. 

(A) The Certification Authority may establish a 
trustworthy procedure whereby a sponsoring 
organization that has been authenticated by the 
Certification Authority and issued a certificate 
may designate one or more Responsible 
Individuals, and authorize them to represent 
the sponsoring organization concerning the 
issuance and revocation of certificates for 
affiliated individuals. The Certification 
Authority may rely on a designated 
Responsible Individual appointed by the 
sponsor to properly authenticate the individual 
applicant, if the Certification Authority has 
previously authenticated the sponsor as an 
organization and the Responsible Individual as 
an unaffiliated individual, in accordance with 
these Rules. A Certification Authority shall be 
presumed to have confirmed a prospective 
subscriber is the person to be listed in a 
certificate where the Certification Authority 
relies on a designated Responsible Individual 
appointed by the sponsor to properly 
authenticate the individual applicant, if the 
Certification Authority has previously 
authenticated the sponsor as an organization 
and the Responsible Individual as an 
unaffiliated individual, in accordance with 
these Rules. 



(B) In the absence of a trustworthy procedure, 
affiliated individuals shall be authenticated in 
the same manner as unaffiliated individuals. 

(2) Authentication Confirmation Procedure. 
Authentication of the individual will be confirmed 
through the use of a shared secret (such as a Personal 
Identification Number). The shared secret is 
distributed via a trustworthy out of band 
communication to the applicant (either directly or via 
the sponsor) and included in the application process 
as part of the certificate enrollment process. 

(3) Personal Presence. 

(A) Applicants affiliated with an approved sponsor 
can be authenticated through an electronically 
submitted application, based on an appropriate 
agreement with the sponsor, the approval of a 
designated Responsible Individual, and the 
distribution of Personal Identification Numbers 
or a similar security device; 

(B) If a Certification Authority elected to use an 
online commercial database, the application 
may be filled out and submitted via the Internet 
from a home or business computer. In the case 
where a Certification Authority elects to use a 
local record check, the application process may 
take place over the Internet, or alternatively. 
the Certification Authority may require the 
applicant visit an appropriate business site in 
order to enter re quired information at a local 
terminal. 

(4) Duties of Responsible Individual. The Responsible 
Individual represents the sponsoring organization 
with respect to the issuance and management of 
certificates. In that capacity he or she is responsible 
for properly indicating which subscribers are to 
receive certificates. 

(j} Renewal Applications (Routine Re-key). A subscriber may 
request issuance of a new certificate for a new key pair from the 
Certification Authority issuing the original certificate. The 
request m.ay be made electronically by a digitally signed 
message based on the old key pair in die original certificate 
under these conditions: 

( 1 ) The request must occur during the period two months 
prior to normal scheduled certificate expiration; 

(2) The subscriber must be authenticated following the 
principles of these Rules; and 

(3) The original certificate has not been suspended or 
revoked. 

(k) Re-key after Revocation. Revoked or expired certificates 
shall not be renewed under any conditions. Applicants without 
a valid certificate from the Certification Authority that 
references these Rules shall be re-authenticated by the 
Certification or Registration Authority on certificate application, 
just as with a first-time application. 
{]} Revocation Request. 
( 1 ) Electronic Revocation Request. 

(A) A revocation request submitted electronically 



1056 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



TEMPORARY RULES 



(2} 



may be authenticated by digital signature using 
the "old" key pair; 

(B) Electronic revocation requests authenticated on 
the basis of the old (compromised) key pair 
, shall always be accepted as valid. Other 
revocation request authentication mechanisms 
are acceptable. These authentication 
mechanisms balance the need to prevent 
unauthorized revocation requests against the 
need to quickly revoke certificates. 

Non-Electronic Revocation Request. 

(A) Organization initiated revocation of affiliated 
certificate(s) shall be authenticated by 
communication from a known person and/or 
official authorized to initiate revocations on 
behalf of an organization. 

(B) Subscriber initiated requests for revocation of 
certificate(s) shall be authenticated by 
presentation of a signed and notarized request 
for revocation. 

(C) Subscriber initiated requests for revocation of 
certificates via an attorney-in-fact shall be 
authenticated by presentation of: 

iij a notarized request for revocation by the 

attorney-in-fact; and 
(ii) a certified copy of the power of 

attorney. 

(D) Revocation by a court of competent 
jurisdiction may be made by presentation of a 
certified court order. 



Histoiy Note: Aiithorin- G. S. 66-58. 10: 
Codifier determined on November 23, 1999, that agency 
findings did not meet criteria for temporary rule: 
Temporarx Adoption Eff. December 3^ 1 999. 

.0305 PUBLIC KEY TECHNOLOGY: OPERATIONAL 
REQUIREMENTS 

(a) Certificate Application. A certificate applicant shall 
complete a certificate application in a form prescribed by the 
Certification Authority Certificate Policy and enter into a 
subscriber agreement with the Certification Authority. All 
applications are subject to Certification Authority review, 
approval, and acceptance. A Certificate Policy shall define the 
minimum content to be used for a certificate application. The 
Certificate Policy shall also specify that all applications are 
subject to review, approval, and acceptance by the Policy 
Authority in addition to the Issuer. 

(b) Certificate Issuance. Upon successful completion of the 
subscriber identification and authentication process in 
accordance with these Rules, and complete and final approval of 
the certificate application, the Certification Authority shall: 

(1) issue the requested certificate; 

(2) notify the applicant thereof; and 

(3) make the certificate available to the applicant using a 
procedure that: 

(A) assures the certificate is only delivered to or 



available for subscriber pickup; and 
(B) provides adequate proof of subscriber 
identification in accordance with these Rules. 
A Certification Authority will not issue a 
certificate without the consent of the applicant 
and, if applicable, the applicant's sponsor. 

(c) Certificate Acceptance. Following certificate issuance, the 
Certification Authority shall continually require the subscriber 
to expressly indicate certificate acceptance or rejection to the 
Certification Authority, in accordance with established 
Certification Authority Certification Practice Statement 
procedures. 

(d) Circumstances for Revocation of Certificate. 

(I ) Permissive Revocation. A subscriber may request 
revocation of his, her, or its certificate at any time for 
any reason. A sponsoring organization, where 
applicable, may request certificate revocation of any 
affiliated individual at any time for any reason. The 
issuing Certification Authority may also revoke a 
certificate upon failure of the subscriber, or where 
applicable, sponsoring organization failure to meet its 
obligations under these Rules, the applicable 
Certification Practice Statement, or any other 
agreement, regulation, or law applicable to the 
certificate that may be in force. 
Required Revocation. A subscriber or sponsoring 
organization, where applicable, shall promptly request 
revocation of a certificate when: 
(A) any information on the certificate changes or 



(2] 



becomes obsolete; 



the private key, or the media holding the 
private key associated with the certificate is. or 
is suspected of having been compromised; or 
(C) an affiliated individual is no longer affiliated 
with the sponsor. 

(3) The issuing Certificate Authority shall revoke a 
certificate: 

(A) upon request of the subscriber or sponsoring 
organization; 

(B) upon failure of the subscriber (or the 
sponsoring organization, where applicable) to 
meet its material obligations under these Rules, 
any applicable Certification Practice Statement. 
or any other agreement, regulation, or law 
ap plicable to the certificate that may be in 
force; 

(C) if knowledge or reasonable suspicion of 
compromise is obtained; or 

(D) if the Certification Authority determines that 
the certificate was not properly issued in 
accordance with these rules and/or any 
applicable Certification Practice Statement. 

(4) Notice of the Certification Authority ceasing 
operation shall be posted to the Certification 
Authority Revocation List maintained by the 
Electronic Commerce Section of the Department of 
the Secretary of State. 



14:12 



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December 15, 1999 



1057 



TEMPORARY RULES 



(e) Who Can Request Revocation. The only persons 
permitted to request revocation of a certificate issued pursuant 
to these Rules are: 

( 1 ) the subscriber; 

(2) the sponsoring organization (where applicable); and 

(3) the issuing Certification Authority. 

(f) Procedure for Revocation Request. 

( 1 ) A certificate revocation request should be promptly 
communicated to the issuing Certification Authority, 
either directly or through a Registration Authority. A 
certificate revocation request may be communicated 
electronically if jl IS digitally signed with the private 
key of the subscriber, or where applicable, the 
sponsoring organization. Requests digitally signed by 
the subscriber, or by the sponsoring organization, are 
considered authenticated when received b^; the 
Certification Authority or Registration Authority. 
Alternatively, the subscriber, or where applicable, the 
sponsoring organization, may request revocation by 
contacting the Certification Authority or an authorized 
Registration Authority in person and providing 
adequate proof ot' identification to authenticate the 
request in accordance with these Rules. Copies of the 
digitally signed request must be archived by the 
Certification Authority or Registration Authority- 
Other identification used to establish the subscriber's 
identity shall be photocopied and initialed by an 
authorized representative of the Certification 
Authority or Registration Authority and archived. 

(2) Repository/Certificate Revocation List Update. 
Promptly, within less than 2 hours of revocation, the 
Certificate Revocation List, or certificate status 
database in the repository, as applicable, shall be 
updated. All revocation requests and the resulting 
actions taken by the Certification Authority shall be 
archived. 

(g) Revocation Request Grace Period. Certificate revocation 
requests shall be authenticated and processed within 2 hours of 
receipt by the Certification Authority. 

(h) Certificate Suspension. The procedures and requirements 
stated for certificate revocation must also be followed for 
certificate suspension, where implemented. 

[i] Certificate Revocation List Issuance Frequency. When 
Certificate Revocation Lists are used, an up-to-date Certificate 
Revocation List shall be issued to the repository at least every 2 
hours. If no change has been made to the Certificate Revocation 
List, an update to the Certificate Revocation List in the 
repository is not necessary. 

ijj Online Revocation/Status Checking Availability. 
Whenever an online certificate status database is used as an 
alternative to a Certificate Revocation List, such database shall 
be updated no later than 2 hours after certificate revocation. 

(k) Computer Security Audit Procedures. All significant 
security events on the Certification Authority system should be 
automatically recorded in audit trail files. The audit log shall be 
processed and archived at least once a week. Such files shall be 
retained for at least 6 months onsite. and thereafter shall be 



securely archived. 
(1] Records. Archival. 

(1 ) Types of Records Archived. The following data and 
files must be archived by (or on behalf of) the 
Certification Authority: 

(A) All computer security audit data; 

(B) All certificate application data; 

(C) All certificates, and all Certificate Revocation 
Lists or certificate status records generated; 

(D) Key histories; and 

(E) All correspondence between the Certification 
Authority and Registration Authority, 
Certificate Manufacturing Authority, 
Repository Services Provider, and/or 
subscriber. 

(2) Retention Period for Archive. Key and certificate 
information and archives of audit trail files must be 
retained for at least 30 years. 

(3) Protection of Archive. The archive media must be 
protected either by physical security alone, or a 
combination of physical security and cryptographic 
protection. The archive must be protected from 
environmental threats such as temperature, humidity, 
and magnetism. The Certification Practice Statement 
must address the procedure for transferring and 
preserving the archive media in the case of the 
Certification Authority ceasing operation in this State. 

(4) Archive Backup Procedures. Adequate backup 
procedures must be m place. In event of loss or 
destruction of primary archives, a complete set of 
backup copies must will be readily available within 
no more than 24 hours. Back up procedures must be 
tested regularly. 

(m) Archive Collection System (Internal or External). 
(Reserved) 

(n) Procedures to Obtain and Verify Archive Information. 
During the compliance audit required by these Rules, the auditor 
shall verify integrity of the archives. Either copy of the archive 
media determined corrupted or damaged in any way, shall be 
replaced with the backup copy held in the separate location and 
noted in the compliance audit report, 
(o) Key Changeover. (Reserved) 
(p) Compromise and Disaster Recovery. 
(1) Disaster Recovery Plan: 

(A) The Certification Authority must have in place 
an appropriate disaster recovery /business 
resumption plan. The Certification Authority 
must set up and render operational a facility 
located in a geographic area not affected or 
disrupted by the disaster. The facility must 
provide Certification Authority Services in 
accordance with these Rules. The alternate 
facility must be operational within 24 hours of 
an unanticipated emergency. Disaster recovery 
planning shall include a complete and periodic 
test of facility readiness. Such plan shall be 
identified and referenced within the 



1058 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



TEMPORAR Y RULES 



Certification Practice Statement or other 

appropriate documentation available to 

Qualitled Relying Parties. 

(B) The disaster recovery plan will have been 

reviewed during Certification Authority initial 

and subsequent third party audits. 

(2) Key Compromise Plan. The Certification Authority 

must have a key compromise plan in place. Tlie plan 

must address procedures to be followed in the event 

the Certification Authority'sprivate signing key used 

to issue certificates is compromised or in the event the 

private signing key of any Certification Authority 

higher in the chain of trust is compromised. Such 

plan shall include procedures for revoking all affected 

certificates and promptly notifying all subscribers and 

all Qualified Relying Parties. 

(q) Certification Authority Termination. In the event t hat the 

Certification Authority ceases operation, the North Carolina 

Department of' the Secretary of' State Electronic Commerce 

Section. North Carolina Information Technology Services, all 

subscribers, sponsoring organizations. Registration Authorities. 

Certificate Manufacturing Authorities. Repository Service 

Providers, and Qualified Relying Parties shall be promptly 

notified of the termination. In addition, all Certification 

Authorities with which cross-certification authority agreements 

are current at the time of cessation must be promptly informed 

of the termination. All certificates issued by the Certification 

Authority referencing these Rules will be revoked no later than 

the time of termination. 

Histoiy Note: Authority G. S. 66-58. 1 0; 

Temporary Adoption Eff. February 23. 1999: 

Codifier determined on November 23, 1999, that agency 

findings did not meet criteria for temporaiy rule: 

Tenworar\ Adoption Eff. December 3^ 1999. 

.0306 PUBLIC KEY TECHNOLOGY: PHYSICAL, 

PROCEDURAL, AND PERSONNEL SECURITY 
CONTROLS 

(a) Physical Security — Access Controls. 
(1 ) The Certification Authorities, and all Registration 
Authorities. Certificate Manufacturing Authorities 
and Repository Services Providers, shall implement 
appropriate physical security controls to restrict 
access to hardware and software (including the server, 
workstations, and any external cryptographic 
hardware modules or tokens ) used in connection with 
providing Certification Authority Services. Access to 
such hardware and software shall be limited to 



personnel performing in a Trusted Role as described 
in this Rule. Access shall be controlled through the 
use of electronic access controls, mechanical 
combination lock sets, or deadbolts. Such access 



Certification Authority's license. 

(b) Procedural Controls. 

(1) Trusted Roles. All employees, contractors, and 
consultants of a Certification Authority (collectively 
"personnel") having access to or control over 
cryptographic operations that may materially affect 
the Certification Authority's issuance, use, 
suspension, or revocation of certificates shall, for 
purposes of these Rules, be considered as serving in 
a trusted role. This includes access to restricted 
operations of the Certificate Authority's repository. 
Such personnel include, but are not limited to. system 
administration personnel, operators, engineering 
personnel, and executives who are designated to 
oversee the Certification Authority's operations. 

(2) Multiple Roles (Number of Persons Required Per 
Task). To ensure that one person acting alone cannot 
circumvent safeguards, multiple roles and individuals 
should share Certification Authority server 
responsibilities. Each account on the Certification 
Authority server shall have limited capabilities 
commensurate with the role of the account holder. 

(c) Personnel Security Controls. 

(1) Background and Qualifications. Certification 
Authorities. Registration Authorities. Certificate 
Manufacturing Authorities and Repository Service 
Providers shall formulate and follow personnel and 
management policies sufficient to provide reasonable 
assurance of the trustworthiness and competence of 
their employees and of the satisfactory performance 
of their duties in manner consistent with these Rules. 

(2) Background Investigation. 

(A) Certification Authorities shall conduct an 
appropriate background investigation of all 
personnel who serve in trusted roles (prior to 
their employment and periodically thereafter. 
as necessary), to verify their trustworthiness 
and competence in accordance with the 
requirements of these Rules and the 
Certification Authority's personnel Practice 
Statements or their equivalent. All personnel 
who fail an initial or periodic investigation 
shall not serve or continue to serve in a trusted 
role. 



IB] 



ID 



Operative personnel shall not ever have been 
convicted of a felony or a crime involving 
fraud, false statement or deception. 
The principle of full disclosure must be applied 
in relation to background investigations and 



(2] 



controls must be manually or electronically monitored 
for unauthorized intrusion at all times. 
Breach of physical security and/or access control 
expectations may result in revocati on of the 



representations of operative personnel. 
(3) Training Requirements. All Certification Authority. 
Registration Authority. Certificate Manufacturing 
Authority and Repository Services Provider personnel 
must receive proper training in order to perform their 
duties, and update briefings thereafter as necessary to 
remain current. 
of the i4] Documentation Supplied to Personnel. All 



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1059 



TEMPORARY RULES 



Certification Authority. Registration Authority. 
Certificate Manufacturing Authority, and Repository 
Services Provider personnel must receive 
comprehensive user manuals detailing the procedures 
for certificate creation, update, renewal, suspension, 
revocation, and software functionality. 

Histoiy Note: Authority G. S. 66-58. 10; 

Temporary Adoption Eff. February 2i, 1999; 

Codifier determined on November 23, 1999, that agency 

findings did not meet criteria for temporary rule; 

Tenworarx Adoption Eff. December 3j_ 1999. 

.0307 PUBLIC KEY TECHNOLOGY: TECHNICAL 
SECURITY CONTROLS 

(a) Key Pair Generation and Installation. 

(1) Key Pair Generation. Key pairs for Certification 
Authorities. Registration Authorities. Certificate 
Manufacturing Authorities. Repository Services 
Providers, and subscribers must he generated in such 
a way that the private key is not known by other than 
the authorized user of the key pair. Acceptable 
methods include: 

(A) Having all users (Certification Authorities. 
Certificate Manufacturing Authorities. 
Registration Authorities. Repository Services 
Providers and subscribers) generate their own 
keys on a trustworthy system, and not reveal 
the private keys to anyone else; or 

(B) Having keys generated in hardware tokens 
from which the private key cannot be 
extracted. 

(2) Certification Authority. Registration Authority, and 
Certificate Manufacturing Authority keys must be 
generated in hardware tokens. Key pairs for 
Repository Services Providers, and end-entities can 
be generated in either hardware or software as 
detailed in the Certification Practice Statement. 

(b) Private Key Delivery to Entity. The private (secret) key 
shall be delivered to the subscriber jn an "out of band" 
transaction. The secret key may delivered to the subscriber in a 
tamper-proof hardware or software container. The secret key 
may be delivered to the subscriber embedded in a hardware 
token protected by encryption and password protected. 

(c) Subscriber Public Key Delivery to Certification Authority. 
The subscriber's public key must be transferred to the 
Registration Authority or Certification Authority in a way that 
ensures: 

it has not been changed during transit; 

the sender possesses the private key that corresponds 

to the transferred public key; and 

the sender of the public key is the legitimate user 

claimed in the certificate application. 

(d) Certification Authority Public Key Delivery to Users. The 
public key of the Certification Authority signing key pair may 
be delivered to subscribers in an on-line transaction in 
accordance with Internet Engineering Task Force Public Key 



01 



(2] 
01 

14] 



Infrastructure Part 3. or via another appropriate mechanism. 

(e) Key Sizes - Asymmetric Cryptographic Applications. 

(1) Minimum key length for other than elliptic curve 
based algorithms is 1024 bits; 

(2) Minimum key length for elliptic curve group 
algorithms is 170 bits. 

(f) Acceptable algorithms for public key cryptography 
applications include, but are not limited to: 

(1 ) RSA (Rivest. Shamir. Adelman) - digital signature 
and information security; 

ElGamal - digital signature and information security; 
Diffie - Hellman - digital signature and information 
security; 

PSA /DSS (Digital Signature Algorithm) ^ digital 
signature applications. 
(0 Certification Authority Private Key Protection. The 

Certification Authority (and the Registration Authority. 

Certificate Manufacturing Authority and Repository Services 

Provider) shall each protect its private key(s) in accordance with 

the provisions of these Rules. 

(I) Standards for Cryptographic Module. Certification 
Authority signing key generation, storage and signing 
operations shall be on a hardware crypto module rated 
at Federal Information Processing Standards 140-1 
Level 2 (or higher). Subscribers shall use Federal 
Information Processing Standards 140-1 Level J_ 
approved cryptographic modules (or higher) and 
related pertinent cryptographic module security 
requirements of the Common Criteria ; ISO 15408-1 
"Evaluation Criteria". 



ill 



(4) 
(6) 

m 

18] 

(9] 

(10) 



lii] 



Private Key (N-M ) Multi-Person Control. (Reserved) 
Private Key Escrow: 

(A) Certification Authority signing private keys 
shall not be escrowed; 

(B) Keys used solely for encryption purposes 
within and by employees ot' the State of North 
Carolina shall be escrowed, unless otherwise 
provided by law. 

Private Key Backup. An entity may back up its own 

private key. 

Private Key Archival. An entity may archive its own 

private key. 

Private Key Entry into Cryptographic Module. 

(Reseryed) 

Method of Activating Private Key. (Reserved) 

Method of Deactivating Private Key. (Reserved) 
Method of Destroying Private Key. (Reserved) 

Other Aspects of Key Pair Management. 

(A) Public Key Archival. (Reserved) 

(B) Key Replacement. Certification Authority key 
pairs must be replaced at least every 3 years. 
Registration Authority and subscriber key pairs 
must be replaced not less than every 2 years 
and a new certificate issued. 

Restrictions on Certification Authority's Private Key 

Use. 

(A) The Certification Authority's signing key used 



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TEMPORAR Y RULES 



for issuing certificates conforming to these 
Rules shall be used only for signing certificates 
and, optionally. Certificate Revocation Lists. 

(B) A private key used by a Registration Authority 
. or Repository Services Provider for purposes 

associated with its Registration or Repository 
Services Provider function shall not be used for 
any other purpose without the express written 
permission of the Certification Authority. 

(C) A private key held by a Certificate 
Manufacturing Authority and used for 
purposes of manufacturing certificates for the 
Certification Authority: 

(i) is considered the Certification 

Authority'ssigning key; 
(ii) is held by the Certificate Manufacturing 
Authority as a fiduciary for the 
Certification Authority; and 
(iii) shall not be used for any reason without 
the express written permission of the 
Certification Authority. 

(D) Any other private key used by a Certificate 
Manufacturing Authority for purposes 
associated with its Certificate Manufacturing 
Authority function shall not be used for any 
other purpose without the express written 
permission of the Certification Authority. 

(h) Activation Data. No stipulation. 

(1) Computer Security Controls. All Certification Authority 
servers must include the functionality satisfying Federal 
Information Processing Standards 140-1 Level 2 (or higher) and 
pertinent cryptographic module security requirements of the 
Common Criteria - ISO 15408-1 "Evaluation Criteria" for IT 
Security either through the operating system, or combination of 
operating system, public key infrastructure application, and 
physical safeguards. 

(jj Life Cycle Technical Controls: 

(1 ) System Development Controls. System design and 
development shall be conducted using an industrial 
standard methodology, e.g. systems development life 
cycle approach (SDLC); 

(2) Security Management Controls. (Reserved) 
(k) Network Security Controls. (Reserved) 

(1) Cryptographic Module Engineering Controls. (Reserved) 



electronic message and verifying the integrity of such 
messages, i.e. public keys used for digital signature 
verification; 
(2) Ail certificates referencing these Rules will be issued 
in the X.509 version 3 format and will include a 
reference to the Object Identifier for these Rules, 
when assigned, within the appropriate field. The 
Certification Practice Statement shall identify the 
certificate extensions supported, and the level of 
support for those extensions, 
(b) Certificate Revocation List Profile. If utilized. Certificate 

Revocation Lists will be issued in the X.509 version 2 format. 

The Certificate Practice Statement shall identify the Certificate 

Revocation List extensions supported and the level of support 

for these extensions. 

Histoiy Note: Authority G.S. 66-58. 10: 
Codifier determined on November 23. 1999, that agency 
findings did not meet criteria for temporaiy rule: 
Temporan' Adoption Eff. December 3^ 1999. 

.0309 PUBLIC KEY TECHNOLOGY: RULE 
ADMINISTRATION 

(a) Rule Change Procedures. (Reserved) 

(b) List of Items. Notice of all proposed changes to these 
Rules, under consideration by the Department of the Secretary 
of State, that may materially affect users of the Rules (other than 
editorial or typographical corrections, or changes to the contact 
details) will be provided to licensed Certification Authorities. 
Notice will be posted on the World Wide Web site of the North 
Carolina Department of the Secretary of State. Authorized 
Certification Authorities shall post notice of such proposed 
changes in their repositories and shall advise their subscribers. 
in writing or b^ e-mail, of such proposed changes. 

(c) Publication and Notification Procedures: 

( 1) A copy of these Rules is available in electronic form 
on the Internet at www.secretary.state.nc.us/ecomm/; 

(2) Authorized Certification Authorities shall post copies 
of these Rules in their repositories. 

History Note: Authority G.S. 66-58. 10: 
Codifier determined on November 23, 1999, that agency 
findings did not meet criteria for temporary rule: 
Temporarx Adoption Eff. December 3^ 1999. 



History Note: A uthority G. S. 66-58. 1 0: 

Temporaiy Adoption Eff. Februaiy 23, 1999: 

Codifier determined on November 23, 1999, that agency 

findings did not meet criteria for temporaiy rule: 

Temporarx Adoption Eff. December 3^ 1999. 

.0308 PUBLIC KEY TECHNOLOGY: CERTIFICATE 
AND CERTIFICATE REVOCATION LIST 
PROFILES 

(a) Certificate Profile: 
(1) Certificates referencing these Rules shall contain 
public keys used for authenticating the sender of an 



SECTION .0400 - BIOMETRICS (RESERVED) 

SECTION .0500 - SIGNATURE DYNAMICS 

(RESERVED) 

SECTION .0600 - (RESERVED) 

SECTION .0700 - ALTERNATE TECHNOLOGIES 

.0701 ALTERNATE TECHNOLOGIES AND 
PROVISIONAL LICENSING 

(a) Alternate Technologies: Any person may petition the 
Electronic Commerce Section to initiate rulemaking to recognize 
a technology not currently recognized under these Rules. Tlie 



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1061 



TEMPORARY RULES 



petition shall be made pursuant to G.S. 150B-20. G.S. 150B-20 
and other statutes can be viewed at the North Carolina General 
Assembly's Internet site at http://www.ncga.state.nc.us/ . In 
addition to the requirements of G.S. 150B-20. in order to enable 
the Electronic Commerce Section to best consider the petition, 
the petitioner should also provide a detailed explanation of the 
proposed technoU^gy. and a discussion of how the technology 
complies with the substantive intent of the Electronic Commerce 
Act. 

(b) Provisional Licensing: If the Electronic Commerce 
Section accepts the proposed technology for rulemaking, it may. 
but is not required to. enter into provisional licensing agreements 
with persons utilizing the proposed technology and desiring 
licensure during the time before the new Rules are effective. The 
terms and conditions ot" any provisional licensing agreement 
shall be substantially consistent with these Rules. 

History Note: Authority G.S. 66-58. 10; 

Temporary Adoption Eff. February 23, 1999; 

Codifier determined on November 23. 1999. that agency 

findings did not meet criteria for temporaiy rule; 

Temporar\' Adoption Eff. December 3^ 1999. 

SECTION .0800 - SANCTIONS AND ENFORCEMENT 

.0801 CIVIL SANCTIONS 

(a) If. upon investigation, the Electronic Commerce Section 
finds that a Certification Authority has violated any provision of 
the Electronic Commerce Act or these Rules, or finds that the 
Certification Authority has had a license revoked or suspended 
in any other jurisdiction, the Electronic Commerce Section may 
revoke or suspend any license issued under the Electronic 
Commerce Act and these Rules. The revocation or suspension 
may be in addition to any civil monetary penalty issued against 
the Certification Authority. As a condition of license 
reinstatement following a period of suspension, the Electronic 
Commerce Section may require that the Certification Authority 
submit updated or additional documentation or assurances 
regarding its operations. 

(b) If. upon investigation, the Electronic Commerce Section 
finds that a Certification Authority has violated any provision of 
the Electronic Commerce Act or these Rules, the Electronic 
Commerce Section may assess a civil monetary penalty of not 
more than five thousand dollars ($5.000 US) for each violation. 
The civil monetary penalty may be in addition to any revocation 
OT suspension of the Certification Authority's license. As a 
condition of continued licensure followingassessment of a civil 
monetary penalty, the Electronic Commerce Section may require 
that the Certification Authority submit updated or additional 
documentation or assurances regarding its operations. 

(c) Adjustment factors. In determining the length of any 
suspension or amount of any civil monetary penalty, the 
Electronic Commerce Section shall consider: 

( 1) The organizational size of the Certification Authority 
cited for violating the provisions of the Electronic 
Commerce Act; 

(2) The good faith of the Certification Authority cited. 



including but not limited to an^ procedures or 
processes implemented by the violator to prevent the 
violation from recurring; 

(3) The gravity of the violation; 

(4) The prior record of the violator in complying or 
failing to comply with the Electronic Commerce Act 
or these Rules; and 

(5) The risk of harm cause by the violation. 

(d) Continuing Violations. After the receipt of notice of a 
violation, if any Certification Authority willfully continues to 
violate by action or inaction the Electronic Commerce Act or 
these Rules, each day or transaction the violation continues or is 
repeated may be considered a separate violation. 

(e) Civil Sanction Notification. When the Electronic 
Commerce Section determines that a civil sanction shall be 
assessed, the Electronic Commerce Section shall notify the 
Certification Authority of the following information by 
electronic mail, if possible, and by any means permitted under 
Rule 4 of the North Carolina Rules of Civil Procedure: 



ill 
12} 



The nature of the violation; 



The civil sanction imposed; 

That the civil sanction will become final unless within 
15 days after receiving notice of the violation the 
Certification Authority either: 

(A) takes exception to the civil sanction assessment 
by filing a contested case petition with the 
Office of Administrative Hearings; or 

(B) submits a written request for the reduction of 
the sanction; and 

(4) The procedure for taking exception to the violation or 
seeking the reduction of the sanction. 

(f) Civil Sanction Finality. The Certification Authority must 
file a contested case petition pursuant to G.S. 150B-23 or submit 
a written request for the reduction of the sanction within 1 5 days 
of receipt of the notice of the civil sanction assessment or the 
assessment shall become final. Notice shall be deemed received 
at the time of service by any method permitted under Rule 4 of 
the North Carolina Rules of Civil Procedure. 

(g) Request for Reduction of Civil Sanction. A Certification 
Authority that admits a cited violation but wishes to seek 
reduction of the length of a suspension or amount of a civil 
monetary penalty may request reduction of the civil sanction. 

( 1 ) Any request for reduction ot" a civil sanction shall be 
submitted to the Electronic Commerce Section in 
writing and must include a written statement 
su pporting the reduction request. Requests for 
reduction of a sanction are solely for the purpose of 
allowing the Certification Authority to contest the 
reasonableness of the civil sanction arising under this 
Rule. The Certification Authority should not attempt 
to contest the existence of a violation or raise 
questions of law in the request for reduction of the 
sanction. 

(2) The Electronic Commerce Section shall determine if 
the assessed sanction is to be reduced pursuant to a 
reduction request and shall notify the Certification 
Authority ot' its decision in writing. 



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December 15, 1999 



14:12 



TEMPORAR Y RULES 



.0901 



(3) If the Electronic Commerce Section determines that 
the reduction request raises issues of fact or questions 
of law, the Electronic Commerce Section may decline 
to consider the reduction request, and shall notify the 
Certification Authority by certified or registered mail 
that it must file a contested case petition with the 
Office of Administrative Hearings in order to 
preserve its claim and legal rights. The Certification 
Authority must file a contested case petition with the 
Office of Administrative Hearings within 15 days of 
receipt of notice or the sanction assessed shall be 
final. 

(4) If the reduction request does not raise issues of fact or 
questions of law, the Electronic Commerce Section 
shall determine rf the assessed sanction is to be 
reduced, and shall notify the Certification Authority 
of its decision in writing bx electronic mail, if 
possible, and by any other means permitted under 
Rule 4 of the North Carolina Rules of Civil 
Procedure. In the event the Electronic Commerce the following; 



Temporaiy Adoption Eff. Febniaiy 23. 1999; 
Codifier determined on November 23, 1999, that agency 
findings did not meet criteria for temporaiy rule; 
Temporaiy Adoption Eff. December 3^ 1999. 



SECTION .0900 - RECIPROCITY 



RECIPROCAL AGREEMENTS AND 
LICENSURE BY RECIPROCITY 

(a) The Electronic Commerce Section may enter 



into 



reciprocal licensing agreements with other jurisdictions that have 
adopted electronic commerce laws similar in nature and intent 
to the Electronic Commerce Act. 

(b) Certification Authorities licensed by other jurisdictions 
may request North Carolina licensure by the North Carolina 
Electronic Commerce Section. The applicant must be currently 
licensed in good standing with another jurisdiction. 

(c) To seek reciprocal licensure in North Carolina. 
Certification Authorities licensed by other jurisdictions shall do 



Section denies the reduction request, or grants the 

reduction request m an amount unacceptable to the 

Certification Authority, the Certification Authority 

must file a contested case petition with the Office of" 

Administrative Hearings within 15 days of receipt of 

notice of the Electronic Commerce Section' sdecision. 

or the decision shall become the final decision. 

Notice shall be deemed received at the time of service 

by any method permitted under Rule 4 of the North 

Carolina Rules of Civil Procedure. 

(h) Payment. Any civil monetary penalty shall be due within 

60 days of the date of the initial assessment of the penalty. 

except that if the Certification Authority files a contested case 

petition pursuant to G.S. 150B-2,3 or submits a written request 

for reduction of the penalty, the penalty shall be due within 60 

days of the date of the final decision. The penalty shall be paid 

with cash or certified funds by personal delivery or certified mail 

to the Electronic Commerce Section. In the event the 

Certification Authority fails to pay the penalty assessed within 

the time periods set forth in this Rule, the Electronic Commerce 

Section may collect the amount of the penalty from the bond 

required by these Rules. 

Histoiy Note: Authority G.S. 66-58.6; 66-58.10; 

Temporaiy Adoption Eff. February 23, 1999; 

Codifier determined on November 23, 1999, that agency 

findings did not meet criteria for temporaiy rule; 

Tempo ran- Adoption Eff. December 3^ 1999. 

.0802 CRIMINAL PENALTIES AND INJUNCTIVE 
RELIEF 

The Department of the Secretary of State has the authority to 
investigate, prosecute and otherwise pursue criminal penalties 
for violations of the Electronic Commerce Act, pursuant to G.S. 
66-58.8. or injunctive relief pursuant to G.S. 66-58.6. 



lii 

01 



ill 



(4] 



i5j 



i6J 



Pay the licensing fee as described in these Rules; 
Provide the Electronic Commerce Section with 
evidence of licensure in good standing from the other 
licensing jurisdiction; 

Provide the Electronic Commerce Section with a 
complete copy of the licensing application that led to 
the Certification Authority becoming licensed in the 
other jurisdiction, including any amendments thereto; 
Provide full disclosure of any former, current or 
proposed disciplinary action or criminal proceeding 
arising from or related to the Certification Authority's 
license or activities as a Certification Authority; 
Provide a complete history of licensure in aU other 
jurisdictions, whether continuous or disrupted, and if 
disrupted the length of the disruption and basis 
therefore; and 



Provide any additional information as required by the 
Electronic Commerce Section. 

(d) The Electronic Commerce Section shall have the power 
to impose civil sanctions against a reciprocal licensee on the 
same basis that the Electronic Commerce Section can impose 
civil sanction against a Certification Authority license otherwise 
issued, or upon finding that the Certification Authority has had 
a license revoked or suspended in another jurisdiction. 

(e) Any Certification Authority that obtains a reciprocal 
license under these Rules shall be obligated to inform the 
Electronic Commerce Section in writing of any civil or criminal 
proceeding that arises from or relates to the Certification 
Authority's license or any disciplinary action commenced 
against the Certification Authority in any other jurisdiction 
within ten days of notice of the proceeding OT action. 

Hi.^tory Note: Authority G.S. 66-58.3; 66-58.6; 66-58. 7; 66- 

58.8: 66-58.10; 66-58.11; 

Temporary Adoption Eff. Febiiiaiy 23, 1999; 



History Note; Authority G.S. 66-58.6; 66-58.8; 66-58. 10: 



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1063 



TEMPORARY RULES 



Codifier determined on November 23, 1999. that agency 
findings did not meet criteria for temporary rule; 
Temporary Adoption Eff. December ^ 1999. 



TITLE 21 - OCCUPATIONAL LICENSING BOARDS 

CHAPTER 21 - BOARD OF GEOLOGISTS 

Rule-making Agency: NC Board fi^r Licensing of Geologists 

Rule Citation: 21 NCAC 21 .050I-.0502. .0514-.0515. .1 101- 
.1102 

Effective Date for Temporary Rules: November 24, 1999 

Findings Reviewed and Approved by: Julian Mann, 111 

A Public Hearing will be conducted at 10:00 a.m. on January 
5, 2000 at 3733 Benson Drive, Raleigh, NC. 

Notice of Rule-making Proceedings was published in the 
Register on September 1, 1999. 

Authority for the rule-making: G.S. 89E-2, 4, 5. 16, 17, 19. 

20 

Proposed Effective Date for Permanent Rules: August 1, 
2000 

Reason for Proposed Action: To adopt and amend rules to 
fidly implement the provisions of a recent act of the General 
Assembly, Session Law 1999-355, revising the procedure used 
by the Board to assess complaints and investigations and 
authorizing the board to assess civil penalties. 

Comment Procedures: All interested parties are invited to 
attend the public hearing. Written comments will be received 
through January 14, 2000 and should be directed to Robert M. 
Upton, Board Administrator, NC Board for Licensing of 
Geologists, PO Bo.x 41225, Raleigh, NC 27629-1225. 



Fiscal Impact 
State Local 



Sub. 



None 



SECTION .0500 - DISCIPLINARY ACTION AND 
PROCEDURE 

.0501 FILING OF CHARGES 

Any person may file with the Board a charge of negligence, 
incompetence, dishonest practice, or other misconduct or of any 
violation of G.S. 89E or of these Rules. Upon receipt of such 
charge or upon its own initiative, the Board may give notice of 
an administ r ativ e hea r ing unde r the Administ r at i v e P r oced ur e 
Act; suspend or revoke the license or certificate of retiistration. 



may impose a civil penalty not in excess of five thousand dollars 
($5,000), may issue a reprimand or caution as provided in Rules 
.0502 and .0504 of this Section or may upon a statement of the 
reasons therefore dismiss the charge as unfounded or trivial, 
which statement shall be mailed to the geologist and the person 
who filed the charge by r egistered o r certified mail. 

History Note: Authority G.S. 89E-5; 89E-17; 

Eff. February 1, 1986; 

Amended Eff. April 1, 1989; 

Temporan Amendment Eff. November 24, 1999. 

.0502 REPRIMAND 

If probable cause is found, but it is determined that a 
disciplinary hearing is not warranted, the Board may issue a 
private reprimand to the accused party. A record of such pr iva te 
reprimand shall be mailed to the accused party and within 15 
days after receipt of the reprimand the accused party may refuse 
the p rivate reprimand and request that a Notice of Hearing be 
issued held pursuant to G.S. 150B. Such refusal and request 
shall be addressed to the Board and filed with the secretary- 
treasurer of the Board. The legal counsel for the Board shall 
thereafter prepare and file a Notice of Hearing. If the letter of 
reprimand is accepted, a record copy of the reprimand shall be 
maintained in the office of the Board. 

Histoiy Note: Authority G.S. 89E-5; 89E-19; 

Eff. February 1, 1986; 

Amended Eff. April 1 , 1989; 

Temporary Amendment Eff. November 24, 1999. 



.0514 INVESTIGATION 

(a) Valid complaints received by the Board shall 



be 



forwarded to an investigator for further inquiry as to whether the 
acts or omissions alleged violate the provisions of G.S. 89E. the 
Board's code ot' professional conduct, or any other rules of this 
Chapter. The Board's executive director shall notify the licensee 
or corporate registrant of the complaint and advise the licensee 
or corporate registrant that: 

(1 ) He has a duty to cooperate fully with the investigation 
by the Board; and 

(2) He may submit a written response to the complaint. 

(b) The investigator shall collect aU information needed to 
determine whether a violation has occurred and the nature and 
severity of the violation. Information gathered during the course 
of an investigation shall be treated as confidential information in 
accordance with G.S. 89E- 18(c) until the Board takes 
disciplinary action against the licensee or corporate registrant. 

(c) After collecting information relevant to the complaint, the 
investigator will submit a report consisting of the complaint, 
information gathered m the course of investigation, and the 
investigator's conclusion to a peer review committee for 
evaluation. The peer review committee will consist of at least 
two professional geologists, each of whom hold a currently valid 
license issued by the Board. 

(d) The investigation report (including, but not limited to, the 
supporting information relevant to the complaint) and the written 



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TEMPORARY RULES 



evaluation of the peer review committee shall be submitted to 
the Executive Director of the Board to be combined with the 
licensee's written response to the complaint, if any, for further 
proceedings in accordance with Rule .0515 of this Section. 

History Note: A uthorin- G. S. 89E-5: 89 E- 1 7; 
Temporai-\ Adoption Eff. November 24, 1999. 

.0515 DISCIPLINARY PROCEDURE 

(a) Upon receipt of an investigation report and evaluation 
from the Board's investigator and peer review committee in 
accordance with Rule .0514 of this Section, the Board's 
Executive Director shall forward to the Chairman ot" the Board 
(or to a member of the Board designated by the Chairman) the 
investigation report, evaluation, and the supporting 
documentation along with the licensee's or registrant's written 
response to the complaint, if any. 

(b) The Chairman (or a member of the Board designated by 
the Chairman) is delegated authority to propose the disciplinary 
action for the violation(s) revealed by the investigation 
consistent with the provisions of G.S. 89E-I9. The Chairman 
(or a member of the Board designated by the Chairman) is also 
delegated authority to issue a summary suspension pursuant to 
G.S. 150B-3(c). 

(c) After review of the investigation report, evaluation, and 
supporting documentation, the Chairman shall notify the 
licensee or corporate registrant of the proposed disciplinary 
action by certified mail sent to the last known address of the 
licensee or corporate registrant as indicated by the Board's 
oftlcial roster. This notification shall contain a summary of the 
alleged facts or conduct upon which the proposed disciplinary 
action is based, the effective date of the proposed disciplinary 
action, and an explanation of the licensee's hearing rights 
pursuant to G.S. 150B. Article 3A. Notification for summary 
suspensions shall meet the requirements of G.S. 150B-3(c). 

(d) The licensee or corporate registrant has 15 days from 
receipt of notification of proposed disciplinary action to file with 
the Board a written request for hearing. If the licensee or 
corporate registrant does not tile a written request for hearing 
with the Board, the Board shall receive the Chairman's 
recommendation on disciplinary action at its next meeting. Ifa 
majority of tlie Board members agree with the Chairman's 
recommendation, the proposed disciplinary action becomes a 
final agency decision. If a majority of the Board members do 
not agree with the Chairman' srecommendation. the Board shall 
make a review of the facts (limited to the investigator's report 
without supporting documentation) solely for the purpose of 
determining whether probable cause exists to support the 
allegations of violation of law and for the purpose of proposing 
an appropriate disciplinary action. The Chairman shall not 
participate in the deliberations or the voting with regard to either 
his recommendation or the Board's decision regarding a 
substitute disciplinary action. A new notice of proposed 
disciplinary action will be sent to the licensee or corporate 
registrant, if necessary, in accordance with the procedure set out 
in Paragraph (c) of this Rule, and the licensee or corporate 
registrant has 1 5 days from receipt of the new notice of proposed 



disciplinary action to file with the Board a written request for a 
hearing. 

(e) The licensee or corporate registrant may request a 
settlement conference; however, neither the request for 
settlement conference nor the Board's agreement to enter into 
settlement negotiations will extend the 15-dav deadline for 
requesting an opportunity for a hearing or any other deadlines in 
the hearing process. The Chairman (or a member of the Board 
designated by the Chairman) is delegated authority to negotiate 
a settlement; however, the settlement agreement must be 
approved by a majority of the members of the Board before the 
proposed disciplinary action will be rescinded. 

(f) Upon receipt of written request for hearing, the Board may 
conduct an administrative hearing as authorized by G.S. 15QB- 
38 or the Board may request the Office of Administrative 
Hearings to conduct the hearing as authorized by G.S. I50B-40. 
Hearings shall be conducted in accordance with the rules of this 
Chapter. 

(g) A majority of the members of the Board will render the 
final agency decision, in accordance with G.S. 1 50B-42. after a 
hearing on the proposed disciplinary action. The Chairman, or 
if applicable the designated member, who proposed the 
disciplinary action after a full review of the facts available to the 
investigator and peer review committee will not participate in 
the discussion of the contested case and will not vote on the final 
decision for disciplinary action. Nothing in thns Rule shall 
prevent members of the Board from participating in the 
discussion and vote on a final agency decision with regard to 
proposed disciplinary action if they have reviewed the 
investigator's report without supporting documentation solely for 
the purpose of determining whether probable cause existed to 
support the allegations of violation and for the purpose of 
proposing an appropriate disciplinary action. 

Histoiy Note: Authority G. S. 89E-5. 89E- 1 9. 89E-20. I50B-3, 

150B-38 through 150B-42; 

Temporaiy Adoption Eff. November 24, 1999. 

SECTION .1100 - PROFESSIONAL CONDUCT 

.1101 RULES OF PROFESSIONAL CONDUCT 

(a) In order to safeguard the life, health, property and welfare 
of the public and to establish and maintain a high standard of 
integrity, skills, and practice in the profession of geology, these 
rules of professional conduct shall be binding upon every person 
holding a certificate of license as a geologist, and on all 
partnerships or corporations or other legal entities authorized to 
offer or perform geologic services in this state. All persons 
licensed or registered under the provisions of G.S. 89E are 
charged with having knowledge of the existence of these Rules 
of professional conduct. 

(b) The geologist shall conduct his practice in order to protect 
the public health, safety, and welfare. 

(1 ) The geologist shall at all times recognize his primary 
obligation to protect the safety, health, and welfare oi' 
the public m the performance of his professional 
duties. If hjs geologic judgment is overruled under 



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1065 



TEMPORAR Y RULES 



circumstances where the safety, health and/or welfare 
ot' the public are endangered, he shall inform his 
employer of the possible consequences and notify 
other proper authority of the situation, as may be 
appropriate. 
(2) The geologist shall protect the public health, safety, 
and welfare by maintaining sufficient personal on-site 
involvement and continual direction and review of the 
activities of subordinates that constitute public 
practice of geology while such activities are in 
progress. The licensee must provide such supervision 
and have sufficient knowledge of the project and site 
conditions necessary to assure accuracy and 
compliance with all applicable laws and regulations 
(including, but not limited to. G.S. 89E and the rules 
of this Chapter). 

(c) The geologist shall perform his services only in areas of 
his competence: 

(1 ) The geologist shall undertake to perform geologic 
assignments only when qualified by education or 
experience in the specific technical field of geology 
involved. 

(2) The geologist may accept an assignment requiring 
education or experience outside of his own field of 
competence, but only to the extent that his services 
are restricted to those phases of the project in which 
he is qualified. All other phases of such project shall 
be performed by qualified associates, consultants, or 
employees. 

(3) The geologist shall not affix his signature and/or seal 
to any document dealing with subject matter for 
which he lacks competence by virtue of education or 
experience or to any such plan or document not 
prepared under his direct supervisory control, except 
that the geologist may affix his seal and signature to 
drawings and documents depicting the work of two or 
more professionals provided he designates by note 
under his seal the specific subject matter for which he 
is responsible. 

(d) The geologist shall issue public statements only in an 
objective and truthful manner: 

(1 ) The geologist shall be completely objective and 
truthful in all professional reports, statements, or 
testimony. He shall include all relevant and pertinent 
information in such reports, statements or testimony. 

(2) The geologist when serving as an expert or technical 
witness before any court, commission, or other 
tribunal shall express an opinion only when it is 
founded upon adequate knowledge of" the facts in 
issue, upon a background of technical competence in 
the subject matter , and upon honest conviction of the 
accuracy and propriety of his testimony. 

(3) The geologist will issue no statements, criticisms, or 
arguments on geologic matters connected with public 
policy which are inspired or paid for by an interested 
party or parties unless he has prefaced his comments 
by explicitly identifying himself, by disclosing the 



identities of the party or parties on whose behalf he is 
speaking, and by revealing the existence of any 
pecuniary interest he may have in the instant matters. 
(4) The geologist shall not attempt to injure, maliciously 
or falsely, directly or indirectly, the professional 
reputation, prospects, practice, or employment of 
another geologist, nor shall he indiscriminately 
criticize another geologist's work in public. If he 
believes that another geologist is guilty of misconduct 
or illegal practice, he shall present such information 
to the proper authority for action. 

(e) TTie geologist shall not attempt to supplant another 
geologist in a particular employment after becoming aware that 
the other has been selected for the employment. 

(f) The geologist shall avoid conflicts of interest: 

( 1 ) The geologist shall conscientiously avoid conflicts of 
interest with his employer or client, but when 
unavoidable, the geologist shall forthwith disclose the 
circumstances to his employer or client. 

(2) The geologist shall avoid aU known conflicts of 
interest with his employer or client, and shall 
promptly inform his employer or client of any 
business association, interest, or circumstances which 
could influence his judgment or the quality of his 
services. 

(3) The geologist shall not accept compensation, financial 
or otherwise, from more than one party for services 
on the same project, or for services pertaining to the 
same project, unless the circumstances are fully 
disclosed to, and agreed to. by all those parties. 

(4) The geologist shall not solicit or accept financial or 
other valuable considerations from material or 
equipment suppliers for specifying their products. 

(5) The geologist shall not solicit or accept substantial 
gratuities, directly or indirectly, from contractors, 
their agents, or other parties dealing with his client or 
employer in connection with work for which he is 
responsible. 

(6) When in public service as a member, advisor, or 
employee ot" a governmental body or department, the 
geologist shall not participate in considerations or 
actions with respect to services provided by him or 
his organization in private geological practices. 

(7) The geologist shall not solicit or accept a geologic 
contract from a governmental body on which a 
principal or officer of hjs business serves as a 
member. 

(g) The geologist shall solicit or accept work only on the 
basis of his qualifications: 

(1) The geologist shall not offer to pay, either directly or 
indirectly, any commission, political contribution, 
gift, or other consideration m order to secure work. 
exclusive of se curing salaried positions through 
employment agencies. 

(2) Tne geologist shall compete for profession al 
employment on the basis of qualification and 
competence for proper accomplishment of the work. 



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TEMPORARY RULES 



He shall not solicit or submit proposals for 
professional services containing a false, fraudulent, 
misleading, deceptive, or unfair statement or claim 
regarding the cost, quality or extent of services to be 
rendered. 
(3) The geologist shall not falsify or permit 
misrepresentation of his^ or his associates' . academic 
or professional qualifications. He shall not 
misrepresent or exaggerate his degree of 
responsibility in or for ttie subject matter of prior 
assignments. Brochures or other presentations 
incident to the solicitation of employment shall not 
misrepresent pertinent facts concerning employers, 
employees, joint ventures, or his or their past 
accomplishments with the intent and purpose of 
enhancing his qualifications and those of his work 
associates, 
(h) The geologist shall associate only with reputable persons 
or organizations: 



( 1 ) The geologist shall not knowingly associate with or 
permit the use of hjs name or firm name in a business 
venture by any person or Tirm which he knows, or has 
reason to believe, is engaging in business or 
professional practices of a fraudulent or dishonest 
nature. 

(2) If the geologist has knowledge or reason to believe 
that another person or tlrm may be in violation of any 
of these provisions or of the North Carolina Geologist 
Licensing Act, he shall present such informati(in to 
the Board and furnish such further information or 
assistance as may be required by the Board. 

ii} Conviction of a felony without restoration of civil rights. 



or the revocation or suspension of the license of a geologist by 
another jurisdiction, if for a cause which in the State of North 
Carolina would constitute a violation of G.S. 89E or of these 
Rules, shall be grounds for a charge of violation of these Rules 
and may result in the revocation of the certificate of licensure or 
corporate registration issued by this Board and/or the imposition 
of a civil penalty not to exceed five thousand dollars ($5.000). 

Histoiy Note: Authority G.S. 89E-5: 89E-I6; 
Tempo ran' Adoption Eff. November 24, 1999. 

.1 102 RULES OF CONDUCT OF ADVERTISING 

(a) The geologist shall not make exaggerated, misleading, 
deceptive or false statements or claims about his professional 
qualifications, experience or performance iii his brochures, 
correspondence, listing, or other public communications. 

(b) The prohibitions listed in thns Rule include, but are not 
limited to. the use of statements containing a material 
misrepresentation of fact or omitting a material fact necessary to 
keep the statement from being misleading; statements intended 
or likely to create an unjustified expectation; statements 
containing prediction of future success; or statements containing 
an opinion as to the quality of services. 

(c) Consistent with the foregoing, the geologist may advertise 
for recruitment of personnel. 

(d) Consistent with the foregoing, the geologist may prepare 
articles for the lay or technical press. Such articles shall not 
imply credit to the author for work performed by others. 

Histoiy Note: Authority G.S. 89E-5; 89E-16: 
Temporary Adoption Eff. November 24, 1999. 



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1067 



RULES REVIEW COMMISSION 



This Section contains tiie agenda for the next meeting of the Rules Review Commission on Wednesday. December 16. 1999. 
10:00 a.m. . at 1 307 Glenwood Ave., Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule 
before the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by 
Friday, December 10, 1999. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Review 
Commission at 919-733-2721 . Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. Smallwood. Vice Chairman 
John Arrowood 

Laura Devan 

Jim Funderburke 

David Twiddy 



Appointed by House 

Paul Powell. Chairman 

Walter Futch 

Jennie J. Hayman 

George Robinson 

R. Palmer Sugg 



RULES REVIEW COMMISSION MEETING DATES 



December 16. 1999 
January 20. 2000 
February 17.2000 



March 16, 2000 
April 13,2000 



LOG OF FILINGS 
RULES SUBMITTED: OCTOBER 20, 1999 THROUGH NOVEMBER 20, 1999 



AGENCY/DIVISION 



RULE NAME 



RULE CITATION 



ACTION 



DEPARTMENT OF COMMERCE/CAPE FEAR RIVER NAVIGATION AND PILOTAGE 

Number of Pilots 4 NCAC 15.0119 

Annual Renewal of License 4 NCAC 15 .0120 

Apprenticeship 4 NCAC 15 .0121 

DHHS/DIVISION OF FACILITY SERVICES 

Location of Agency 10 NCAC 3R .01 1 1 

Research Activity 1 NCAC 3R .02 1 2 

Definitions 10 NCAC 3U .0102 

Scope 10 NCAC 3U .2501 

Special Provisions for Licensure 10 NCAC 3U .2502 

Staff Qualifications 10 NCAC 3U .2510 

Education Standards for a Rated License 10 NCAC 3U .2804 

Education Standards for Centers 10 NCAC 3U .281 1 

DHHS/DIVISION OF VOCATIONAL REHABILITATION SERVICES 



DENR 



Secretary's Review and Final Decision 
Civil Action 

Purpose 

Definitions 

Grants from the High-Unit Cost Accounts 

Filing of Required Supplemental Information 

Criteria for Planning and Water Conservation 

Applicable Conditions 

Fiscal Responsibility of the Applicant 

Public Need 

Fiscal Responsibility of the Applicant 

Public Necessity; Health: Safety 



10 NCAC 20B ,0224 
10 NCAC 20B .0228 

15 NCAC IJ.OIOI 
15 NCAC 1 J .0102 



15 NCAC IJ 
15 NCAC IJ 
15 NCAC IJ 
15 NCAC IJ 
15 NCAC IJ 
15 NCAC IJ 
15 NCAC IJ 



,0202 
,0303 
,0402 
,0502 
,0504 
.0601 
,0604 



15 NCAC 1 J .0701 



COMMISSION 

Amend 
Amend 
Amend 

Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Adopt 

Amend 
Amend 

Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 
Amend 



1068 



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14:12 



RULES REVIEW COMMISSION 



Financial Considerations 


15NCAC1J.0703 


Amend 


Assignment of Category to Wastewater Applications 


15NCAC 1 J. 0803 


Amend 


Criteria for Loan Adjustments 


15NCAC 1 J. 0903 


Amend 


Disbursement of Loans and Grants 


15NCAC 1 J .0904 


Amend 


Purpose 


15NCAC IL.OIOI 


Amend 


Definitions 


15NCAC 1L.0102 


Amend 


Limitation of Loans 


15NCAC 1L.0203 


Repeal 


Filing of Required Supplemental Information 


15NCAC 1L.0303 


Amend 


Applicable Conditions 


15NCAC 1L.0501 


Amend 


Fiscal Responsibility of the Applicant 


15NCAC 1L.0503 


Amend 


Public Need 


15NCAC 1L,0601 


Amend 


Fiscal Responsibility of the Applicant 


15NCAC 1L.0604 


Amend 


Public Necessity 


15NCAC 1L,0701 


Amend 


Planning and Water Conservation 


15NCAC 1L.0801 


Amend 


Assignment of Category to Wastewater Applications 


15NCAC 1L,0902 


Amend 


Criteria for Loan Adjustments 


15NCAC 1L.1003 


Amend 


Disbursement of Loans 


15NCAC 1L.1004 


Amend 


DENR/MARINE FISHERIES COMMISSION 






Identification Information 


15NCAC3H.0101 


Repeal 


Proclamation Authority 


15NCAC3H.0103 


Amend 


Definitions 


15NCAC3I.0101 


Amend 


Leaving Devices Unattended 


15NCAC3I.0105 


Amend 


Scientific, Educational, or Official Collecting 


15NCAC3I.0106 


Amend 


Recordkeeping Requirements 


15NCAC3I.0114 


Amend 


Possession or Transportation 


15NCAC3I.0120 


Adopt 


Trawl Nets 


15NCAC3J.0104 


Amend 


Seines 


15NCAC3J.0110 


Adopt 


Pots 


15NCAC3J.0301 


Amend 


Recreational Use of Pots 


15NCAC3J.0302 


Amend 


Trotlines (Multiple Hook or Multiple Bait) 


15NCAC3J.0305 


Adopt 


Prohibited Shellfish 


15NCAC3K.0101 


Amend 


Harvest of Crabs and Shellfish 


15NCAC3K.0105 


Amend 


Taking or Unloading Oysters 


15NCAC3K.0106 


Amend 


Size Limit and Culling Tolerance 


15NCAC3K.0202 


Amend 


Taking Bay Scallops at Night 


15NCAC3K.0502 


Amend 


Size Limit and Culling Tolerance 


15NCAC3L.0201 


Amend 


Peeler Crabs 


15NCAC3L.0206 


Adopt 


Season, Size and Harvest Limit 


15NCAC3M ,0202 


Amend 


Flounder 


15NCAC3M .0503 


Amend 


Trout 


15NCAC3M.0504 


Amend 


BiUfish 


1 5 NCAC 3M ,0507 


Amend 


Bluefish 


15NCAC3M.0511 


Amend 


Cobia 


15 NCAC 3M .0516 


Adopt 


Procedure and Requirements 


15 NCAC 30 .0101 


Amend 


Recreational Fishing Tournament License 


15 NCAC 30 .0102 


Amend 


Auxiliary Vessels 


15 NCAC 30 .0103 


Amend 


Commercial Unloading of Fish 


15 NCAC 30 .0104 


Amend 


Bait Dealers 


15 NCAC 30 .0105 


Amend 


Display of Licenses and Registrations 


15 NCAC 30 .0106 


Amend 


Lost License Replacement 


15 NCAC 30 .0107 


Amend 


License Transfers 


15 NCAC 30 .0108 


Amend 


Assignment of SCFL 


15 NCAC 30 .0109 


Amend 


License Refunds 


15 NCAC 30 .01 10 


Amend 


Surrender of Licenses 


15 NCAC 30.01 11 


Adopt 


Standards for Shellfish Bottom 


15 NCAC 30 .0201 


Amend 


Eligibility for Recreational Commercial Gear Lie. 


15 NCAC 30.0301 


Amend 


Authorized Gear 


15 NCAC 30.0302 


Amend 



14:12 



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December 15, 1999 



1069 



RULES REVIEW COMMISSION 



Recreational Commercial Gear License 

Consideration of Appeal Petitions 

Emergency Licenses 

Hardship Licenses 

Appeals Panel Final Decision 

Official Record 

Reasons for Revocation 

Temporary Emergency Vessel Crab Licenses 

Eligibility Board 

Application Process 

Eligibility Board Review 

Eligibility Criteria 

Application Documentation 

Standard Commercial Fishing License 
DENR/COASTAL RESOURCES COMMISSION 

AECs 

Management Objective 

Coastal Shorelines 

Purpose 

Purpose 

Purpose 

Purpose 

Private Bulkheads 

Exemption 
DENR/COMMISSION FOR HEALTH SERVICES 

Applicability 

Submittals 

Submissions Required by Engineer 

Application for Approval 

Approvals Necessary Before Contracting 

Changes in Engineering Plans 

Engineer's Water System Plan 

Engineering Plans and Specifications 

Final Approval 

Water System Operation and Maintenance 
STATE BOARDS/N C BOARD OF PHARMACY 

Automated Dispensing or Drug Supply Devices 

Procedures for Centralized Processing 
N C HOUSING FINANCE AGENCY 

Persons and Families of Moderate Income 



15NCAC3O.0303 


Amend 


15 NCAC 30.0304 


Repeal 


1 5 NCAC 30.0305 


Repeal 


15 NCAC 30.0306 


Repeal 


15 NCAC 30.0307 


Repeal 


15 NCAC 30 .0308 


Repeal 


15 NCAC 30 .0309 


Repeal 


15 NCAC 30 .0310 


Repeal 


15 NCAC 30 .0401 


Adopt 


15 NCAC 30 .0402 


Adopt 


1 5 NCAC 30 .0403 


Adopt 


15 NCAC 30 .0404 


Adopt 


15 NCAC 30 .0405 


Adopt 


15 NCAC 30 .0406 


Adopt 


15 NCAC 7H .0201 


Adopt 


15 NCAC 7H .0203 


Adopt 


15 NCAC 7H .0209 


Adopt 


15 NCAC 7H. 1301 


Adopt 


15 NCAC 7H. 1601 


Adopt 


15 NCAC 7H. 1901 


Adopt 


15 NCAC 7H .2301 


Adopt 


15 NCAC 7K .0203 


Adopt 


15 NCAC 7K .0209 


Adopt 


15 NCAC 18C.0301 


Amend 


15 NCAC 18C.0302 


Amend 


15NCAC18C.0303 


Amend 


15 NCAC 18C.0304 


Amend 


15 NCAC 18C.0305 


Amend 


15 NCAC 18C .0306 


Amend 


15 NCAC 18C.0307 


Amend 


15 NCAC 18C.0308 


Amend 


15 NCAC 18C.0309 


Amend 


15 NCAC 18C.1304 


Amend 


21 NCAC 46. 18 14 


Amend 


21 NCAC 46. 1816 


Adopt 



24 NCAC 1H.0103 



Amend 



RULES REVIEW COMMISSION 

November 17, 1999 
MINUTES 

The Rules Review Commission met on November 17, 1999, in Methodist Building, 1307 Glenwood Avenue, Raleigh, North 
Carolina. The meeting was convened in the Veterinary Board meeting room after a public announcement to those gathered for the 
meeting. After a closed session the meeting continued in the Assembly Room. Commissioners in attendance were Vice Chairman 
Teresa Smallwood, Jennie J. Hayman, Walter Futch, Palmer Sugg, John Arrowood, Laura Devan, David R. Twiddy, and George 
Robinson. 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 

The following people attended: 



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December 15, 1999 



14:12 



RULES REVIEW COMMISSION 



Harry Wilson 
Dedra Alston 
Mary Beth Johnston 
Mary Shuping 
Marge Howell 
Tom West 
Leslie Bevacqua 
Butch Gunnells 
Shirley Bullard 
Daniel Garner 
Thomas Allen 
Noah Huffstetler 
Jackie Herbster 
Ted Edwards 
Tim Devinney 
Frank Crawley 
Henry Jones 
Patricia Purser 
Denise Stanford 
Delores Joyner 
James A. Wellons 
Mary Ann Olsen 
Howard Kramer 
Lee Hoffman 
Bob Fitzgerald 
Jackie Sheppard 



State Board of Education 

DENR 

Womble Carlyle 

Legislative Research 

Labor 

Poyner and Spruill 

N C Citizens for Business & Industry 

N C Soft Drink Association 

DHHS/CHS 

Banking Commission 

DENR/DAQ 

Kilpatrick Stockton 

Kilpatrick Stockton 

Kilpatrick Stockton 

Glaxo-Wellcome 

Attorney General 

Jordan, Price 

DHHS/DSB 

Board of Pharmacy 

OSP/State Personnel Commission 

DHHS/DFS 

Psychology Board 

Board of Nursing 

DHHS/DFS 

DHHS/DFS 

DHHS/DFS 



APPROVAL OF MINUTES 

The meeting was called to order at 10:01 a.m. with Vice Chairman Small wood presiding. She requested that a motion be made to 
go into closed session to consider communications from its attorneys concerning the Pharmacy Board lawsuit. The motion was made. 
The Commission reconvened at 10:18 and she asked for any discussion, comments, or corrections concerning the minutes of the 
September 30, 1999 meeting. There being none, the minutes were approved. 

COMMISSION BUSINESS 

The Commission elected officers as follow: Theresa Smallwood was elected Chairman, Palmer Sugg was elected First Vice 
Chairman, and Jennie J. Hayman was elected Second Vice Chairman. 

FOLLOW-UP MATTERS 

12 NCAC lOB .0103, .0502, and .0601: JUSTICE/Sheriffs' Education & Training Standards - The Commission approved the 
rewritten rules submitted by the agency. 

1 3 NCAC 7F .0601 , .0602, .0603, .0604, .0605, and .0606: DEPARTMENT OF LABOR - Commissioner Payne requested that these 
rules be postponed until the December meeting. No action was taken on these rules. 

15A NCAC 16A .1 104 - DHHS/Commission for Health Services - At the request of the agency no action was taken on this rule. 

16 NCAC 6D .0503 and .0504: STATE BOARD OF EDUCATION - The rewritten rules submitted by the agency were approved 
by the Commission. 

16 NCAC 6H .01 10: STATE BOARD OF EDUCATION - The rewritten rule submitted by the agency was approved by the 
Commission. 

21 NCAC 20 .0120: N C BOARD OF REGISTRATION FOR FORESTERS - The rewritten rule submitted by the agency was 
approved by the Commission. 



14:12 



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December 15, 1999 



1071 



RVLES REVIEW COMMISSION 



25 NCAC IB .0437: STATE PERSONNEL COMMISSION - The rewritten rule submitted by the agency was approved by the 
Commission. 

25 NCAC 1 H .0605 and .0606: STATE PERSONNEL COMMISSION - The rewritten rules submitted by the agency were approved 
by the Commission. 

LOG OF FILINGS 

Chairman Smailwood presided over the review of the log and all rules were approved with the following exceptions: 

2 NCAC 52B .0207: AGRICULTURE/Board of Agriculture - The Commission objected to this rule due to ambiguity. In (a), (c), 
and (d), it is not clear what is meant by an "accredited" veterinarian. G.S. 106-318 refers to "duly licensed in the state of origin." 
It is not clear that this is the same. It is also not clear what standards the State Veterinarian is to use to determine if other forms of 
animal identification are acceptable in (a). In (b), it is not clear who must approve, or what the standards for approval are, for a 
pseudorabies serological test. In (d), it is notclear what proof of pseudorabies status is acceptable to the State Veterinarian. It is also 
not clear who must approve or what the standards for approval of a veterinarian are. In (e) it is not clear what standards the State 
Veterinarian is to use in approving slaughtering establishments. 

2 NCAC 52B .0302: AGRICULTURE/Board of Agriculture - The Commission objected to this rule due to ambiguity. In (a)(7), it 
is not clear what standards the State Veterinarian is to use in requiring buyers of feeder heifers to sign a statement of intent. 

2 NCAC 52E .0209: AGRICULTURE/Board of Agriculture - The Commission objected to this rule due to lack of statutory authority 
and ambiguity. In (a) and (b), it is not clear who must approve or what are the standards for approval of a veterinarian. There is no 
cited authority for the Board of Agriculture to approve veterinarians. In (a), it is not clear what the standards for approval of ear tags 
and tattoos are, or what other identification means will be approved in (a) and (b). It is not clear what standards the Commissioner 
is to use to raise the test age for cattle. Absent specific standards, it must be done through the rulemaking process. 

4 NCAC 3L .0701 : COMMERCE/Banking Commission - The Commission objected to this rule due to lack of statutory authority 
and necessity. G.S. 53-284 sets out the grounds upon which the Commissioner may suspend or revoke a license. If the grounds are 
not listed in that statute, he may not take such action. If it is listed, then it does not need to be in the rule. Commissioner Arrowood 
recused himself from the Banking Commission rules. 

10 NCAC 3R .6234: DHHS/Di vision of Facility Services - The Commission objected to this rule due to ambiguity. In (a)(1)(A), 
it is not clear what is meant by a "suitable" structure. In (a)(2), it is not clear what is meant by "Financial consideration. ..shall be 
equitable..." Commissioner Hayman recused herself from Rules .1615, .1713, and .1715. 

10 NCAC 3S .1101: DHHS/Di vision of Facility Services - The Commission objected to this rule due to lack of statutory 
authority. The definition of the terms, "dietician or nutritionist," "mental health professional," and "registered nurse" are without 
authority because of the way they are used in .1301. The definitions set occupational requirements by defining the terms as 
licensed individuals. If the functions required in .1301 can be performed by unlicensed individuals, the department has no 
authority to require licenses. If licenses are required, then it is up to the licensing board, not the department to enforce. 

10 NCAC 3S .1203: DHHS/Division of Facility Services - The Commission objected to this rule due to ambiguity. It is not clear 
what accrediting bodies are recognized by the Department or conversely what standards the Department will use in recognizing 
them. 

1 NCAC 3S . 1 207: DHHS/Division of Facility Services - The Commission objected to this rule due to lack of necessity. The 
rule merely repeats the contents of G.S. 13 IE- 168(b) and is thus unnecessary. 

10 NCAC 3S .1301: DHHS/Division of Facility Services - The Commission objected to this rule due to lack of statutory 
authority and ambiguity. The second sentence in (a) says that the team shall perform "the following functions.," but no functions 
are then listed. It is not clear what functions are meant. There is no authority cited for the department to set occupational 
requirements as the rule does in (b)(1), (3), (4), (5), and (6). Items (1) and (4) specifically set out the requirements in this rule 
while the definition of the terms in .1 101 sets out the requirements in the other items. While the department can set out what 
functions must be performed, it is not given authority to tell who can perform them. In (b)( 1 ), it is not clear what is meant by 
"appropriate subject matter." 



1072 NORTH CAROLINA REGISTER December 15, 1999 14:12 



RULES REVIEW COMMISSION 



lONCAC 3S .1601; DHHS/Di vision of Facility Services - The Commission objected to this rule due to ambiguity. In (e)(2), it is 
not clear what is an "acceptable alternative" for measuring eating patterns. 

10 NCAC 3S .1802: DHHS/Division of Facility Services - The Commission objected to this rule due to ambiguity. In (g), it is 
not clear if "better diabetic control" means any improvement is acceptable. 

10 NCAC 3S .2001: DHHS/Division of Facility Services - The Commission objected to this rule due to ambiguity. G.S. 1-15 
and 1-17 do not contain provisions for the retention and disposition of records, therefore (5) is unclear. 

15A NCAC 2D .0541: DENR/Environmental Management Commission - The Commission objected to this rule due to lack of 
statutory authority. The first sentence of (f) is probably true. However, there is no authority cited for this agency to make any 
rules regarding the legal obligations of or consequences to a party for complying or failing to comply with other laws. Likewise 
the second sentence of (0 purports to set legal standards or conclusions. There is no authority cited for the agency to make rules 
specifying what does or does not constitute a legal defense. 

1 5 A NCAC 2D . 1 80 1 : DENR/Environmental Management Commission - The Commission objected to this rule due ambiguity. 
It is unclear in (7) what is meant by "to increase the steady state live weight that can be housed at that animal operation." 

15A NCAC 2D .1802: DENR/Environmental Management Commission - The Commission objected to this rule due ambiguity. 
In (e)( I ), lines 30 and subsequently, it is unclear where the determination is made "at" the neighboring occupied property. Is it 
"at" the boundary, the location of the facility, or some other place? 

15A NCAC 31 .0117: DENR/Marine Fisheries Commission - The Commission extended the period of review on this rule in 
order to determine if the rule is needed to administer the program. 

21 NCAC 1 .0101 : N C Acupuncture Licensing Board - The Commission objected to this rule due to lack of statutory authority. 
There is no authority to license those who do not meet the qualifications set out in the statute. The Board acknowledges in its 
reason for proposed action that this is the purpose of the rule, to license "those who do not meet. .qualifications." In effect this 
may be an attempt to be a license by comity and there is no authority to grant such licensure. 

COMMISSION PROCEDURES AND OTHER MATTERS 

An application for contingency funds to pay the attorneys is pending. It has been approved by the Joint Governmental 
Operations Committee and now awaits action by the Council of State at its December 7 meeting. The attorneys make $200 per 
hour. Staff was instructed to inform the attorneys that their presence at the Commission meeting is not necessary. 

The next meeting will be on Thursday, December 16, 1999. 

The meeting adjourned at 12:40 p.m. 

Respectfully submitted, 
Sandy Webster 



14:12 NORTH CAROLINA REGISTER December 15, 1999 1073 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina 's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings, (919) 733-2698. Also, the Contested Case Decisions are available on the Internet at the following 
address: http://www.state.nc. us/OAH/liearings/decision/caseinde.x.htm. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LAW JUDGES 



Sammie Chess Jr. 
Beecher R. Gray 

Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Beryl E. Wade 



AGENCY 

ADMINISTRATION 

Bntthaven. Inc. v. Department of Administration 

and 
Priva-Trends, Inc. 
Laidlaw Transit Svcs. Inc. v. Katie G. Dorsett. Sec'y/Dept/Administration 99 DOA 0102 

OFFICE OF ADMINISTRATIVE HEARINGS 

Ted Murrell. Zam, Inc. v. Office of AdminisU-ative Heatings 
Samuel Lee Ferguson v. Office of Administrative Heanngs 

AGRICULTURE 

Archie McL.ean v. Department of Agriculture 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v, Keyland. Inc.. T/A Cloud 9 
Alcoholic Beverage Control Commission v. Food Lion, Inc.. Store ttl.^.'il 
Alcoholic Beverage Control Commission v. Stop 1. Inc. T/A Stop 1 Grocery 
Alcoholic Beverage Control Commission v. George Steven Everett 

tya Casino Snooks Place 
Alcoholic Beverage Control Commission v. Beech Mountain Resort. Inc. 
Alcoholic Bev. Control Comm.v. Partnership T/A Mermaid Rest. & Lge. 
Alcoholic Beverage Control Commission v. Jaeson Nyung Kim 
Alcoholic Beverage Control Commission v. Lillian Sarah Clary 
Alcoholic Beverage Control Commission v. Vnus Enterprices. LLC, 

t/a Rendez Vous Club & City of Charlotte 
Alcoholic Beverage Control Commission v. Mohammad Salim Pirani 
Alcoholic Beverage Control Commission v. Creek Lounge. Inc. t/a 

Creek Lounge 

Delores Ann Holley v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Commission v. Partnership T/A 

Corrothers Communitv Center/Pnvate Club 



CASE 




NUMBER 


ALJ 


98 DOA 08 11 


Chess 


99 DOA 0102 


Momson 


99 OAH 0665 


Chess 


99OAH0718 


Chess 


98 DAG 1770 


Reilly 


98 ABC 1099 


Overby 


98 ABC 1270 


Gray 


98 ABC L\'7 


Phipps 


98 ABC 1.546 


Reilly 


99 ABC 0287 


Reilly 


99 ABC 0.^67 


Chess 


99 ABC 0407 


Momson 


99 ABC 0615 


Phipps 


99 ABC 0684 


Morgan 


99 ABC 0780 


Morrison 


99 ABC 0820 


Morgan 


99 ABC 0876 


Gray 


99 ABC 0986 


Lassiter 



DATE OF 
DECISION 



06/10/99 



06/11/99 



07/14/99 
07/16/99 



07/12/99 



01/17/99 
O.Wl/99 
09/29/99 
10/19/99 

08/11/99 
09/17/99 
07/09/99 
09/01/99 
10/15/99 

09/21/99 
10/LV99 

08/10/99 
1 1/03/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:02 NCR 115 



14:04 NCR 349 



14:04 NCR 347 



CRIME CONTROL AND PUBLIC SAFETY 

Ray .Anthony Breeding v, Cnme Control & Public Safety 
John Ray Webb v. Crime Victims Compensation Commission 
Sarene Franklin Holloway v. Crime Victims Compensation Comm. 
Paul Richard Mull v. Crime Victims Compensation Commission 
Coradene Mayhand v. Cnme Victims Compensation Commission 



93 CPS 0695 


Gray 


09/L3/99 


95CPS 1.V53 


Gray 


09/13/99 


97 CPS 1172 


Chess 


10/12/99 


98 CPS 0342 


Chess 


07/26/99 


98 CPS 0.398 


Chess 


10/09/99 



1074 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



AGENCY 

Edna Carr v. Crime Victims Compensation Commission 

Enc Charles Williams v. Crime Control & Public Safety. Div. of 

State Highway Patrol 
Bobhy Mills v. Crime Victims Compensation Commission 
William Samuel McCraw v. Crime Victims Compensation Commission 
Anson D- Looney v. Cnme Victims Compensation Commission 
Elvin Williams, Jr. v. Cnme Victims Compensation Commission 
Michael Anthony Powell v. Cnme Victims Compensation Commission 
Mary Elizabeth Peoples Hogan v. Crime Victims Compensation Comm. 
Lemuel Ray Jenkins v. Crime Victims Compensation Commission 
Annabell B. McCormick v. Crime Victims Compensation Commission 

ENVIRONMENT AND NATURAL RESOURCES 

R.J. Reynolds Tobacco Co. v. Dept. of Environment & Natural Resources 

T. Eamell Shingleton v. Environment and Natural Resources 

T. Famell Shingleton v. Environment and Natural Resources 

Town of Maysville v. Environment and Natural Resources 

Willie Setzer v. Department of Environment & Natural Resources 

Charles H. Jordan v. Brunswick County Health Department 

Jerry Franks and John Schifano. et. al. v. Environment & Natural Resources 

and Wake County Board of Commissioners 
Jerry Franks and John Schifano, el. al. v. Environment & Natural Resources 

and Walce County Board of Commissioners 
James P. and Irene P. Wilson v. Cleveland Co. Health & Sanitary 
Deep River Citizens' Coalition. American Canoe Assoc. Inc.. and Deep 

River Coalition, Inc. v. Department of Env. & Natural Resources 
Deep River Citizens" Coalition. Amencan Canoe Assoc. Inc.. and Deep 

River Coalition. Inc. v. City of Greensboro. Piedmont Tnad Regional 

Water Authonty 
Mazzella's Restaurant. Peter D. Mazzella v. Carteret County Env. HealtJi 
Roadway Express v. Department of Environment and Natural Resources 
John W. Venahle v. Department of Environment and Natural Resources 
Shell Island Homeowners' Association v. DENR. Div. of Env. Health 
Gail S. Barfield v. Depanment of Environment and Natural Resources 
Richard E. Day v. Division of Coastal Management 
Ronald L. Walker, Sr., v. Environmental Health Ala County 
Clifford Myers v. Montgomery County Health Department 
Deloris B. Wooten v. Pitt County Dept. of Environmental Health 

Division of Air Quality 

Neighbors Against The Cullasaja Asphalt Plant & Blue Ridge Env. 
Defense League, Inc. v. Dept of Env & Natural Resources and Rhodes 
Brothers Paving. Inc. and Carolina Asphalt Pavement .Association 

Terrance W. Bache. Pres.. Terhane Group, Inc. v. DENR. Div/Air Quality 

XVIll Airborne Corps &. Fort Bragg. Dept. of the Army. USA v. 
Environment and Natural Resources. Div. of Air Quality 

J.D. Owen v. Environment and Natural Resources. Div. of Air Quality 

Environmental Management 

Allen Raynor v. Environmental Management Commission 

Division of Land Resources 

Buel B. Barker. Jr. and Hubbard Realty of Winston-Salem, a NC Corp.. 

jointly and severally v. DENR. Div. of Land Resources 
T.B. Powell. Inc. v. DENR. Division of Land Resources 
Ronald G. Smith v. DENR. Division of Land Resources 

Division of Marine Fisheries 

Alton Chadwick v. Division of Manne Fishenes 

Division of Water Quality 

York Oil Company v. DENR. Division of Water Quality 

J. Todd Yates and Teresa B. Yates v. DENR. Div. of Water Quality 

N.G. Purvis Farms. Inc. v. DENR, Division of Water Quality 

BOARD OF GEOLOGISTS 

Andrew M. Ranng. Ph.D v. Board for the Licensing of Geologists 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98 CPS 0788 


Chess 


10/28/99 




98CPS1279 


Chess 


11/01/99 




98 CPS 1412 


Wade 


08/06/99 




98 CPS 1626 


Mom.son 


06/09/99 




99 CPS 0096 


Morrison 


05/25/99 




99 CPS 01 18 


Owens 


08/03/99 




99 CPS 0426 


Reilly 


08/03/99 




99 CPS 0.'i04 


Reilly 


07/29/99 




99 CPS 0521 


Gray 


09/08/99 




99 CPS 0.564 


Phipps 


08/04/99 




98EHR LM.5 


Wade 


06/04/99 


14:02 NCR 110 


98EHR 1600 


Reilly 


10/08/99 


14:11 NCR 926 


98EHR 1601 


Reilly 


10/08/99 




99 EHR 0069 


Owens 


09/27/99 




99EHR0166 


Chess 


06/28/99 




99 EHR 0201 


Momson 


06/28/99 




99 EHR 0344" 


Phipps 


09/28/99 





99 EHR 0380" 



Phipps 



09/28/99 



99 EHR 0506 


Lassiter 


10/07/99 




99 EHR 0560" 


Reilly 


11/01/99 




99 EHR 0613" 


Reilly 


11/01/99 




99 EHR 0692 


Reilly 


08/19/99 




99 EHR 0745 


Momson 


07/27/99 




99 EHR 0773 


Wade 


10/13/99 




99 EHR 0814 


Owens 


08/18/99 




99 EHR 0840 


Momson 


11/19/99 




99 EHR 0921 


Wade 


1 1/02/99 




99 EHR 1076 


Momson 


10/18/99 




99 EHR 1106 


Mann 


11/03/99 




99 EHR 1131 


Wade 


11/19/99 




98 EHR 1 735 


Gray 


09/30/99 


14: 10 NCR 900 


98 EHR 1790 


Mann 


06/23/99 




99 EHR 0283 


Wade 


08/1 1/99 




99 EHR 0642 


Mann 


08/10/99 




99 EHR 0127 


Gray 


07/27/99 




98 EHR 1457 


Momson 


06/09/99 




99 EHR 0632 


Wade 


10/04/99 




99 EHR 0799 


Morrison 


10/29/99 




99 EHR 0553 


Reilly 


08/19/99 




97 EHR 1026 


Phipps 


07/26/99 


14:04 NCR 343 


98 EHR 1456 


Wade 


06/22/99 




99 EHR 0696 


Chess 


08/27/99 




99 BOG 0150 


Mann 


06/16/99 





HEALTH AND HUMAN SERVICES 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1075 



CONTESTED CASE DECISIONS 



AGENCY 

Eardley "JR" Stephens v. St. Bd. of Nurse's Aides and Practitioners 

Ernest Clyde Absher and Dianna B. Abstier v. Health & Human Resources 

Andrew Gainey v. Office of the Chief Medical Examiner 

J. P. Lynch v. Department of Health & Human Services 

Paul Walker. Thomas Walker & Mary Walker v. Mecklenburg Area 

Mental Health 
New Hope Living Centers. Enc D. Lewis v. Health & Human Services 
Frank McKoy v. Department of Health & Human Services 
Joan Mane McDaniel v. Department of Health & Human Services 
Lonnic Hemng v. Department of Health & Human Services 
Robert H. Riley v. Office of the Governor. Office of Citizen Services 
Betty C. Patterson v. Department of Health & Human Services 
Rayner Super Mkt.. J.K. Rayner. Jr. v. Department of Health and 

Human Services 
Monica Denise Dayson v. Department of Health & Human Services 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98DHR0155 


Phipps 


08/25/99 




98DHR 1622 


Reilly 


06/17/99 




98DHR 1761 


Owens 


05/12/99 


14:01 NCR 69 


99DHR0III 


Reilly 


05/25/99 




99DHR0I55 


Momson 


08/19/99 




99DHR0I70 


Owens 


05/25/99 




99DHR0226 


Wade 


07/06/99 




99 DHR 0.W5 


Reilly 


08/05/99 




99 DHR 0350 


Reilly 


06/03/99 




99 DHR (me 


Wade 


07/21/99 




99 DHR 0954 


Reilly 


1 1/05/99 




99 DHR 0961 


Morrison 


11/15/99 





99 DHR 1041 



Reilly 



09/29/99 



Division of Child Development 

Shaw Speaks Child Dev. Ctr. v. Health & Human Svcs., Child Dev. 
Lachelle L. Parsons v. Health & Human Svcs, Div. of Child Dev. 
In The Beginning, Inc. v. Health & Human Svcs., Div. of Child Dev. 
Dulatown Outreach Center. Inc. v. Health & Human Svcs.. Child Dev. 
Michele Denoff v. Health & Human Services, Div. of Child Dev. 
MLCM, Inc., Mary C. McGovem v. DHHS, Div. of Child Dev. 
Small World Daycare II, Trena S. McDaniel v. Health & Human Svcs., 
Div. of Child Dev. 



99 DHR 0042 


Gray 


07/22/99 


99 DHR 0445 


Reilly 


07/19/99 


99 DHR 0575 


Mann 


07/19/99 


99 DHR 0688 


Owens 


07/21/99 


99 DHR 0695 


Owens 


08/05/99 


99 DHR 1032 


Wade 


11/19/99 


99 DHR 1038 


Lassiter 


10/06/99 



Division of Facility Services 

Kelly M. Poole v. Health & Human Services, Div. of Facility Services 

Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 

Delia C. Jones v. Health & Human Services. Div, of Facility Services 

Heather Alane Scott v. Health & Human Svcs. Div of Facility Services 

Effie Ruth Smith v. Health & Human Svcs,, Div, of Facility Services 

Vivienne Gelona Marshall v. DHHS, Div. of Facility Services 

Sarah L. Mathis v. DHHS. Div. of Facility Services 

Dons Laviner Moser v. Health & Human Services, Div. of Facility Svcs. 

Norma Faye Lewis v. Health & Human Svcs., Div. of Facility Services 

Carolyn Grant v. Health & Human Services, Div. of Facility Services 

Manon Moser Thompson v. Health & Human Svcs., Facility Services 

Rose Mane Hadley v. Health & Human Svcs,, Div. of Facility Services 

Sarah Frances Alford v. Health & Human Svcs., Div. of Facility Svcs. 

Alvin L, Phynon Jr, v. Health & Human Svcs., Dept. of Facility 

Barbara Rhue v. D.F.S. 

Barbara Rhue v. D.F.S. 

Michelle Johnson v, DHHS. Division of Facility Services 

Esther Nieves v. Health & Human Services, Div, of Facility Services 

Apnl De'Shelle Turner v. DHHS. Div, of Social Service, 

Program Integnty Branch 
Shirley Ann Beck v. Division of Facility Services 

Division of Medical Assistance 

Intenm HealthCare - Moms Group, Inc., Lisa B. Moms, RN, BSN v. 

DHHS, Division of Medical Assistance 
Companion Health Care, Inc. v. Div. of Medical Assistance, DHR 



97 DHR 0629 


Chess 


06/14/99 


98 DHR 1274"' 


Phipps 


07/02/99 


98 DHR 1680 


Gray 


06/09/99 


98 DHR 1671 


Gray 


10/08/99 


98 DHR 1774 


Chess 


07/14/99 


98 DHR 1786 


Phipps 


09/02/99 


99 DHR 0032 


Momson 


09/24/99 


99 DHR 0074 


Wade 


08/06/99 


99 DHR 0144*' 


Phipps 


07/02/99 


99 DHR 0145 


Mann 


06/1 1/99 


99 DHR 0216 


Gray 


08/13/99 


99 DHR 0218 


Wade 


08/06/99 


99 DHR 0220 


Phipps 


06/08/99 


99 DHR 02.30 


Mann 


07/07/99 


99 DHR 0401*' 


Wade 


07/30/99 


99 DHR 0414*' 


Wade 


07/30/99 


99 DHR 0546 


Gray 


10/12/99 


99 DHR 0766 


Phipps 


07/21/99 


99 DHR 0927 


Gray 


10/21/99 


99 DHR 0942 


Mann 


09/24/99 


99 DHR 0552 


Mann 


09/01/99 


99 DHR 0762 


Owens 


07/29/99 



Division of Mental Health, Developmental Disabilities and Substance Abuse Services 

S.S. by her parents and next fnends, D.S. & A.S. v. DMH/DD/SAS 99 DHR 0538 



Gray 



08/02/99 



Division of Social Services 

Robert H. Riley v. Iredell County DSS 

Robert H, Riley v. Health & Human Svcs,. Div. of Social Services 

Joanna Price v. Caldwell County Social Services 

Veronica Owens v. Dept, of Social Services Union County 

Child Support Enforcement Sectum 
Grady J. Gnffith v, Department of Human Resources 



99 DHR 0354 


Wade 


07/21/99 


99 DHR 0355 


Wade 


07/21/99 


99 DHR 0520 


Momson 


06/10/99 


99 MIS 0677 


Mann 


08/17/99 


97CRA 1-570 


Mann 


10/26/99 



Consolidated Cases. 



7076 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



AGENCY 

Lindy Teachout v. Depanmem of Health & Human Services 

Thomas Ashley Stewan II v. Department of Health & Human Services 

June V. Pettus v. Department of Human Resources 

Floyd W. Hubbard v. Department of Human Resources 

Richard Arnold Collins v. Jones County DSS 

David S. Blackwelder v. Department of Human Resources 

June V. Pettus v. Department of Human Resources 

Grady J. GnlTith v. Department of Human Resources 

John T. Raynor v. Department of Human Resources 

Kenneth Wayne Adair v. Department of Human Resources 

Randy Snead v. Department of Human Resources 

Shawn E. Williams v. Department of Human Resources 

Hurt G. Stokes v. Department of Health & Human Services 

Ronald E. Sanders v. Department of Human Resources 

Willie D. Davis v. Department of Human Resources 

G.S. Hall V. Department of Health & Human Sei^ices 

Charles Stewart v. Department of Human Resources 

Kenneth A. McCrone v. Department of Human Resources 

Daniel R. Klock v. Department of Human Resources 

David M. VanDyke v. Department of Human Resources 

Jerome Maddox v. Department of Health & Human Services 

Sam Anderson v. Department of Human Resources 

Donald Edward Law II v. Department of Human Resources 

Sechia Lee Corhett v. Department of Human Resources 

Robert T. Ausband v. Department of Human Resources 

Shawn E. Williams v. Department of Human Resources 

Antonio Melendez v. Department of Health & Human Services 

William W, Heck v. Department of Human Resources 

Rickey Lightner v. Department of Human Resources 

Robert M. Chandler Jr. v. Department of Health & Human Services 

Jermaine L. Covington v. Department of Health & Human Services 

Grady L. Chosewood v. Department of Health & Human Services 

Fulton Allen Tillman v. Department of Health & Human Services 

Nathaniel Alston v. Department of Health & Human Services 

Bret Burtrum v. Department of Health & Human Services 

Cedric A. Hurst v. Department of Human Resources 

Dane Wesley Ware v. Department of Health & Human Services 

Paul H. Padnck v. Department of Health & Human Services 

Oscar William Willoughby Sr. v. Dept. of Health & Human Services 

Kelvin E. Townsend v. Department of Health & Human Services 

Billy J. Young v. Department of Health & Human Services 

Rodney Eugene Caldwell v. Department of Health & Human Services 

Adelheide J. Cooper v. Department of Health & Human Services 

Beverly K. Thompson v. Department of Health & Human Services 

Michael L. Timmer v. Department of Health & Human Services 

Elizabeth F. West v. Department of Health & Human Services 

Troy Gibson v. Department of Health & Human Services 

Roy D. Washington v. Department of Health & Human Services 

Everett A. Mitchell v. Department of Health & Human Services 

Corey Antoine Johnson v. Department of Health & Human Services 

Holland E. Harold v. Department of Health & Human Services 

Larry Lowell Dixon v. Department of Health & Human Services 

Calvin D. Alston v. Department of Health & Human Services 

Marquel Simmons v. Department of Health & Human Services 

Anthony Vincente Battista v. Department of Health & Human Services 

Gerald Scott Saucier v. Department of Health & Human Services 

Lawrence Gordon Soles v. Department of Health & Human Services 

Mohamed Moustafa v. Department of Health & Human Services 

Vicky L. Day v. Department of Health & Human Services 

Matthew Conklin v. Department of Health & Human Services 

Charlie James White v. Department of Health & Human Services 

Bennie Lamar Knighten v. Department of Health & Human Services 

Larie Bolton v. Department of Health & Human Services 

Randy Lewis Bryant v. Department of Health & Human Services 

Earl C, Jones, Sr. v. Department of Health & Human Services 

Joseph F. Donaldson, III v. Department of Health & Human Services 

Naion V. Pnde v. Department of Health & Human Services 

Claude W. Jordan v. Department of Health & Human Services 

Henry Roosevelt Mercer v. Department of Health & Human Services 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


98 CRA 0727 


Reilly 


06/24/99 


99 CRA 0628 


Reilly 


06/14/99 


96CSE1721*» 


Mann 


09/17/99 


96CSE 1725 


Reilly 


09/02/99 


96CSE 1810 


Reilly 


06/28/99 


97CSE0416 


Momson 


08/24/99 


97CSE0867*'' 


Mann 


09/17/99 


97CSE 1569 


Mann 


10/26/99 


98 CSE 0054 


Gray 


10/21/99 


98 CSE 0229 


Momson 


06/30/99 


98 CSE 0544 


Gray 


10/21/99 


98 CSE 0845 


Phipps 


09/21/99 


98 CSE 0898 


Gray 


07/23/99 


98 CSE 1182 


Mann 


10/26/99 


98 CSE 1387 


Mann 


09/17/99 


98 CSE 1392 


Reilly 


06/24/99 


98 CSE 1419 


Mann 


09/17/99 


98 CSE 1435 


Gray 


08/04/99 


98 CSE 1440 


Morrison 


10/20/99 


98 CSE 1549 


Mann 


09/17/99 


98 CSE 1562 


Mann 


09/17/99 


98 CSE 1585 


Mann 


09/17/99 


98 CSE 1586 


Momson 


06/25/99 


98 CSE 1588 


Phipps 


09/21/99 


98 CSE 1612 


Mann 


11/02/99 


98 CSE 1613 


Phipps 


09/21/99 


98 CSE 1635 


Chess 


09/30/99 


98 CSE 1638 


Mann 


09/17/99 


98 CSE 1717 


Reilly 


1 1/02/99 


98 CSE 1789 


Phipps 


05/27/99 


99 CSE 0209 


Lassiter 


11/18/99 


99 CSE 0301 


Mann 


07/01/99 


99 CSE 03 1 1 


Reilly 


06/30/99 


99 CSE 0317 


Mann 


07/01/99 


99 CSE 03 18 


Wade 


07/14/99 


99 CSE 0330 


Chess 


08/10/99 


99 CSE 0359 


Gray 


06/28/99 


99 CSE 0370 


Mann 


11/02/99 


99 CSE 0371 


Morrison 


06/28/99 


99 CSE 0373 


Phipps 


07/12/99 


99 CSE 0374 


Reilly 


06/14/99 


99 CSE 0427 


Lassiter 


10/20/99 


99 CSE 0428 


Phipps 


07/19/99 


99 CSE 0435 


Reilly 


06/14/99 


99 CSE 0437 


Wade 


06/08/99 


99 CSE 0451 


Momson 


05/25/99 


99 CSE 0462 


Owens 


07/19/99 


99 CSE 0481 


Reilly 


06/25/99 


99 CSE 0483 


Chess 


10/05/99 


99 CSE 0486 


Gray 


09/13/99 


99 CSE 0509 


Mann 


1 1/02/99 


99 CSE 0518 


Morrison 


08/24/99 


99 CSE 0539 


Owens 


08/10/99 


99 CSE 0547 


Wade 


08/06/99 


99 CSE 0551 


Chess 


08/31/99 


99 CSE 0576 


Mann 


06/09/99 


99 CSE 0581 


Momson 


06/09/99 


99 CSE 0582 


Owens 


08/05/99 


99 CSE 0679 


Gray 


09/27/99 


99 CSE 0689 


Mann 


09/17/99 


99 CSE 0690 


Momson 


07/20/99 


99 CSE 0702 


Owens 


09/20/99 


99 CSE 0735 


Phipps 


08/06/99 


99 CSE 0737 


Reilly 


09/20/99 


99 CSE 0801 


Gray 


08/10/99 


99 CSE 0802 


Mann 


11/02/99 


99 CSE 0825 


Phipps 


08/20/99 


99 CSE 0831 


Reilly 


10/1 1/99 


99 CSE 0841 


Wade 


10/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1077 



CONTESTED CASE DECISIONS 



AGENCY 

Bobby Gene Owens v. Department of Health & Human Services 
Thomas L. Vaughn v. Department of Health & Human Services 
Robert F. Skipper v. Department of Health & Human Services 
Gerald W. Lawson v. Department of Health & Human Services 
Debbie Calmon Moore v. Department of Health & Human Services 
Kenneth Dana Kirk \- Department of Health & Human Services 
Michael Bryant v. Department of Health & Human Services 
Kathryn P. Fagan v. Department of Health & Human Services 
Tresha W. Robinson v. Department of Health & Human Services 
Robert Dwayne Kennedy v. Department of Health & Human Services 
Deborah Seegars v. Department of Health & Human Services 
Lillian Anne Darroch v. Department of Health & Human Services 
Evelyn C. Pratt v. Department of Health & Human Services 
Jacqueline D. Caldwell v. Department of Health & Human Services 

JUSTICE 

Alann Systems Licensing Board 

Terry Allen Bnckey v. Alarm Systems Licensing Board 
Travis Enc Reardon v. Alarm Systems Licensing Board 
Bnan Anthony Bartimac v. Alarm Systems Licensing Board 
Paul Luke Walczak v. Alarm Systems Licensing Board 
Melvin T. Lohr v. Alarm Systems Licensing Board 
Bradford D. Penny v. Alarm Systems Licensing Board 
Benny L. Shaw v. Alarm Systems Licensing Board 
Tracey Larue Santana v. Alarm Systems Licensing Board 
Donald Eugene Boger v. Alarm Systems Licensing Board 
Kajur Washburn v. Alarm Systems Licensing Board 
Timothy Chezere Sifford v. Alarm Licensing Board 
Howard Douglas Self v. Alarm Licensing Board 

Education and Training Standards Division 

Rock Steven Edwards v. Cnminal Justice Ed. & Training Stds. Comm. 
Anthony Scott Hughes v. Shenffs' Ed. & Training Standards Comm. 
Hal Pilgreen v. Cnminal Justice Ed. & Training Stds. Comm. 
Emma J. Kiser v. Shenffs' Ed. & Training Standards Comm. 
Keith Allen Noms v. Shenffs' Ed. & Training Standards Comm. 
Sherry Davis Kenney v. Cnminal Justice Ed. & Training Stds. Comm. 
Bnan G. Mead v. Cnminal Justice Education & Training Stds. Comm. 
Steven Randolph Russell v. Cnminal Justice Ed. & Training Stds. Comm. 
Russell Lee Yelverton v. Cnminal Justice Ed. & Training Stds. Comm. 
James Manon Massey v. Cnminal Justice Ed. & Training Stds. Comm. 
Mark E. Narron v. Shenffs' Ed. & Training Stds. Commission 
Shean E. Taylor v. Shenffs' Ed. & Training Stds. Commission 
Dennis L. Ramsingh v. Shenffs' Ed. & Training Stds. Commission 
Sandra G. Armstrong v. Sheriffs' Ed. & Training Standards Comm. 
Edward L. Lusk v. Shenffs' Ed. & Training Standards Comm. 
Tonnette Bembury v. Shenffs' Ed. & Training Standards Comm. 
Terry Leon Jones v. Cnminal Justice Education & Training Stds. Comm. 
Brenda J. Mines v. Sheriffs' Education & Training Stds. Comm. 

Private Protective Services Board 

Tri-City Secunties and James G. Hutcherson v. Private Protective Svcs. Bd. 

Tri-City Secunties and James G. Hutcherson v. Pnvate Protective Svcs. Bd. 

Ordie Hazu McFarland v. Pnvate Protective Services Board 

Thomas E. Mewbom v. Pnvate Protective Services Board 

Michael Lynn After v. Pnvate Protective Services Board 

Jeffrey S. Moore v. Pnvate Protective Services Board 

Bonnie Mane Keller v. Pnvate Protective Services Board 

Shawn E. .Alexander v. Pnvate Protective Services Board 

Ronald E. Sulloway v. Private Protective Services Board 

Raymond Solomon v. Pnvate Protective Services Board 

Charles E. Evans, Jr. v. Pnvate Protective Services Board 

Lawrence Martin v. Pnvate Protective Services Board 

William E. Ellis, Sr. v. Private Protective Services Board 

Bobby James Nicholson v. Pnvate Protective Services Board 

Thomas William Atchison v. Private Protective Services Board 

Mark Lavem Hewitt v. Pnvate Protective Services Board 

Robert Steven Pekel v. Pnvate Protective Services Board 

Jacqueline Renee Haywood v. Pnvate Protective Services Board 



CASE 




DATE OF 


NUMBER 


ALJ 


DECISION 


99 CSE 0877 


Gray 


10/11/99 


99 CSE 0883 


Mann 


11/08/99 


99 CSE 0899 


Morrison 


10/20/99 


99 CSE 0909 


Lassiter 


11/16/99 


99 CSE 0957 


Gray 


10/18/99 


99 CSE 0972 


Mann 


10/26/99 


99 CSE 1235 


Gray 


11/17/99 


98 DCS 1769 


Momson 


06/25/99 


99 DCS 0480 


Gray 


10/18/99 


99 DCS 0482 


Wade 


09/10/99 


99 DCS 0505 


Phipps 


06/30/99 


99 DCS 0555 


Gray 


07/06/99 


99 DCS 08 13 


Owens 


08/25/99 


99 DCS 0974 


Momson 


09/20/99 



PUBLISHED DECISION 
REGISTER CITATION 



99 DOJ 0097 


Wade 


05/21/99 




99 DOJ 0446 


Phipps 


07/28/99 




99 DOJ 0487 


Momson 


05/25/99 




99 DOJ 0489 


Owens 


08/03/99 




99 DOJ 0490 


Momson 


05/24/99 




99 DOJ 0522 


Morrison 


06/08/99 




99 DOJ 0523 


Momson 


06/08/99 




99 DOJ 0524 


Phipps 


09/24/99 




99 DOJ 07 15 


Owens 


07/29/99 




99 DOJ 07 16 


Owens 


07/29/99 




99 DOJ 1022 


Momson 


09/24/99 




99 DOJ 1230 


Reilly 


10/27/99 




98 DOJ 0906 


Chess 


05/13/99 




98 DOJ 1530 


Chess 


05/12/99 




98 DOJ 1775 


Chess 


06/09/99 




98 DOJ 1793 


Gray 


06/07/99 




99 DOJ 0045 


Mann 


07/29/99 


4:04 NCR 351 


99 DOJ 0067 


Wade 


06/08/99 




99 DOJ 0106 


Gray 


10/07/99 




99 DOJ 0123 


Owens 


10/29/99 


4:11 NCR 928 


99 DOJ 0131 


Phipps 


08/11/99 




99 DOJ 0168 


Reilly 


10/11/99 




99 DOJ 0453 


Momson 


09/08/99 


4:07 NCR 568 


99 DOJ 0790 


Reilly 


09/29/99 




99 DOJ 0796 


Gray 


1 1/04/99 




99 DOJ 0844 


Mann 


09/24/99 




99 DOJ 0846 


Phipps 


09/29/99 




99 DOJ 0934 


Reilly 


09/29/99 




99 DOJ 1054 


Wade 


10/21/99 




99 DOJ 1138 


Wade 


10/14/99 




98 DOJ 1749*' 


Phipps 


09/02/99 




98 DOJ 1752*' 


Phipps 


09/02/99 




99 DOJ 0099 


Momson 


10/12/99 




99 DOJ 0101 


Owens 


07/30/99 




99 DOJ 0262 


Wade 


05/25/99 




99 DOJ 0488 


Momson 


05/24/99 




99 DOJ 0491 


Momson 


05/24/99 




99 DOJ 0492 


Owens 


07/19/99 




99 DOJ 0493 


Momson 


05/24/99 




99 DOJ 0494 


Momson 


05/25/99 




99 DOJ 0496 


Momson 


05/25/99 




99 DOJ 0526 


Momson 


10/25/99 




99 DOJ 0527 


Momson 


06/08/99 




99 DOJ 0528 


Phipps 


08/17/99 




99 DOJ 1018 


Momson 


09/21/99 




99 DOJ 1019 


Gray 


11/10/99 




99 DOJ 1020 


Gray 


11/10/99 




99 DOJ 1 1 23 


Gray 


11/10/99 





1078 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



AGENCY 

PUBLIC INSTRUCTION 

Martin Wayne Fletcher v. Si. Bd. of Educ, Dept of Public Instruction 
S.H. by and through her guardian and custodian. H.H. and H.H v. 

Henderson County Board of Education 
Paula Momll, individually/on behalf of John Momll v. Wake Cty. Schools 
S.L.F. and S.F.F. v. Charlotte-Mecklenburg Board of Educanon 
Marshall Scott Brannan v. Department of Public Instruction 
Matthew Weber, and his father and next fnend. Bnan Weber, aiid Bnan 

Weber v. Wilkes County Schools 
Deborah F. Brogden \'. State Board of Education 
C. Kenneth Wamngton v. Edgecombe County Schools 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION 


REGISTER CITATION 


98EDC000I 


Chess 


09/21/994 




98EDC 1124 


Mann 


06/1 1/99 




98EDCI205 


Gray 


09/24/99 




98EDC 1649 


Mann 


06/04/99 




98 EDC 1796 


Owens 


07/13/99 


14:07 NCR 565 


99EDC029I 


Mann 


09/07/99 




99 EDC 0734 


Reilly 


10/05/99 




99 EDC 09.'i5 


Reilly 


09/29/99 





STATE PERSONNEL 



Department of Agriculture 

H.C. Troxler. Jr. \. Dept. of -Agnculture and Consumer Services 

Community Colleges 

Thomas Michael Chamberlin v. Department of Community Colleges 

Correction 

E. Wayne Irvin v. Department of Correction 
Pershield DeLoatch v. Departinent of Correction 
Deborah Smith v. Department of Correction 
Maydean L. Taylor v. Department of Correction 

Ann McMillian v, Momson Youth Institution. Department of Correction 
Edward .Alan Roper v, DOC. Div. of Prisons. Western Youth Institute 
Shirley Sellars v. Department of Correction 

Sean R. Dillard v. Dept. of Correction. Pasquotank Correctional InsL 
DeCarlos Stanley v. Department of Correction 
Ste\e A. Matthews v. Department of Correction 
Patnck Smith v. Department of Correction 
Harry E. Kenan v. Capt. B.F. Lewis, Polk Youth Institution 
Robert Russell, Jr. v. Jeff Jones, Div of Community Corrections 
Judith Caves v. Department of Correction 
Shirley Sellars v. Department of Correction 

Richmond Fulmore v. Department of Correction. Wake Correctional 
Henry C. Parks v. DART/Admin., Ann Shea, Edward McCall, Thomas 
G. Ivester 
Jerry D. Crawford v. Departinent of Correction 
Walter L. Whitaker v. Capt. Ricky Johnson. Pasquotank Corr. Inst. 
Angelo Alfonzo Smith v. Department of Correction 
Charles Creegan v. Department of Correction 
David J. Dennis v. Department of Correcnons, Polk Youth Institution 
Tara King v. Department of Corrections 
Joyce Ann Bullock v. Polk Youth Institution 

Crime Control and Public Safety 

Thomas Michael Chamberlin v. DCCPS. Center for Missing Persons 

North Carolina School for the Deaf 

Steve Crawford v. North Carolina School for the Deaf 
Danny Wilson Carson v. North Carolina School for the Deaf 
Enc Arden Hurley v. North Carolina School for the Deaf 

Employment Security Commission 

Russell J. Suga v. Employment Secunty Commission 

Environment and Natural Resources 

L. Clifton Carroll v. Dept of Natural Resources, Div. of Parks and 

Recreation 
Larry .A. Campbell v. NC Wildlife Resources Commission 
Pathe Vivek v. Department of Environment & Natural Resources 

Health and Human Sen'ices 

Debbie L. Whitley v. Wake County Department of Social Services 
Vera Crenshaw v. DHHS. Julian F. Keith Ale. & Drug Abuse Trtmt. Ctr. 
Ivey G. Rhodes v. Pitt County Mental Health Center 
Odessa D. Gwynn v. Caswell County Health Department 



99 OSP 0659 


Chess 


07/27/99 




99OSP0286 


Phipps 


06/25/99 




94 OSP 1791 


Morrison 


05/18/99 


14:01 NCR 60 


98 OSP 1026 


Gray 


08/11/99 




98 OSP 1126 


Chess 


06/22/99 




98 OSP 1272 


Chess 


05/14/99 




98 OSP 1275 


Chess 


05/12/99 




98 OSP 1644 


Gray 


08/1 1/99 




98 OSP 1788'" 


Gray 


09/30/99 




98 OSP 1800 


Gray 


08/26/99 




99 OSP 0027 


Morrison 


06/22/99 




99 OSP 0162 


Morrison 


08/20/99 




99 OSP 0163 


Momson 


10/14/99 




99 OSP 0257 


Phipps 


06/07/99 




99 OSP 0258 


Lassiter 


09/29/99 




99 OSP 0338 


Phipps 


09/29/99 


14:11 NCR 945 


99 OSP 0386'" 


Gray 


09/30/99 




99 OSP 0416 


Mann 


06/04/99 




99 OSP 0512 


Momson 


09/22/99 




99 OSP 0577 


Reilly 


06/02/99 




99 OSP 0644 


Gray 


10/12/99 




99 OSP 0675 


Gray 


1 1/04/99 




99 OSP 0765 


Reilly 


08/03/99 




99 OSP 0918 


Chess 


10/12/99 




99 OSP 0930 


Chess 


1 1/08/99 




99 OSP 1065 


Wade 


11/15/99 




99 OSP 0596*-' 


Gray 


08/16/99 




99 OSP 0640 


Lassiter 


10/18/99 




99 OSP 0641 


Lassiter 


10/18/99 




99 OSP 0087 


Reilly 


06/24/99 




96 OSP 1122 


Reilly 


05/26/99 




98 OSP 0914 


Gray 


10/22/99 


14:12 NCR 1082 


99 OSP 0050 


Momson 


11/10/99 


14:12 NCR 1086 


99 OSP 0956 


Chess 


10/06/99 




97 OSP 0722 


Phipps 


09/27/99 




98 OSP 0456 


Gray 


08/05/99 




98 OSP 0924 


Phipps 


07/09/99 




98 OSP 1299 


Grav 


08/25/99 





14:12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1079 



CONTESTED CASE DECISIONS 



AGENCY 

Doris Virginia Weanng v. Durham County Health Department 

Julia A. Cameron v. John Umstead Hospital, Health & Human Services 

Danny Jacob v. Onslow County Board of Health 

Jency Abrams v. Department of Health & Human Services 

Lisa Adams-Houghton v. Rockingham Co, Dept of Social Services 

Timothy Truzy v. Department of Health & Human Services 

Carlos D, Burks, Sr. v. North Carolina Special Care Center 

Bryan Benson v. Durham Cty, Area MH/DD/SAS Program 

Shirley C, Jones v. Department of Health & Human Services 

Odell Hudson v. Health & Human Svcs., Dorothea Di,x Hospital 

Erica Joynes v. Durham County Department of Social Services 

Thomas Michael Chamberlin v. Off, of Juvenile Justice, Juvenile 

Services Division, 14" Distnct Court Division 
Cheryl Highsmith v, DHHS, Youth Svcs,, New Hanover Reg. Juvenile 

Detention Center 
Veda B, Gill v, Durham County Department of Social Services 
Anthony Ratchff v Department of Health & Human Services 

Johnston County 

Lili Romaine Lee v. County of Johnston 

Justice 

Thomas Michael Chamberiin v. Justice, Justice Academy 

Labor 

Robert C. Adams v. Department of Labor 

Department of Public Instruction 

Billy McEachem v. Schools of Robeson County 
John Lee Herbin v. Smarkand Manor Training School 
Linda D, Chapman v, Lenoir County Public Schools 

Transportation 

Michelle Maloney Wilkins v. Department of Transportation 

Judy S. Gnndstaff v. Department of Transportation 

Charles W, McAdams v, Dept, of Transportation. Div/Motor Vehicles 

Larry R, Lane v. Department of Transportation 

Ronald Roberson v, Dept, of Transportation, Right-of-Way Branch 

Shelvia Davis v. Department of Transportahon 

Carmalita Daniels v. Department of Transportation 

University of North Carolina 

Wanda Troxler v, A & T State University and Dr, Ray J. Davis 
Vivian Smith Hammiel, Ling-Chih C, Hsu and Joel A. Williams v. East 

Carolina University 
Vivian Smith Hammiel, Ling-Chih C, Hsu and Joel A, Williams v. East 

Carolina University 
Vivian Smith Hammiel, Ling-Chih C, Hsu and Joel A, Williams v. East 

Carolina University 
Jackie S. Flowers v. East Carolina University 
James .A, Benton v. University of North Carolina at Charlotte 
Rex A, Coughenour v. University of North Carolina at Chapel Hill 
Anna Anita Huff v, Dr, Lonnie Sharpe/Dr. Reza Salami-Coll,/Engineenng 
Rex A, Coughenour v. University of North Carolina at Chapel Hill 
Thomas Michael Chamberlin v, UNC @ Chapel Hill, Dept, of University 

Housing, Division of Student Affairs 
Halycon Tudie Blake v. University of North Carolina at Chapel Hill 
Bndgette R. Booker v, Winston-Salem State University 
Rex A, Coughenour v. University of North Carolina at Chapel Hill 
Temperance T, Tobe v. North Carolina Central University 
Harold Richardson v. University of North Carolina at Charlotte 

DEPARTMENT OF TRANSPORTATION 

Peter Kay., Stem v. Department of Transportation 

UNIVERSITY OF NORTH CAROLINA 

Stephanie A, Payne v, UNC Hospitals 
Barbara A, Russell v, UNC Hospitals 
Robin Perkins Stephens v. UNC Hospitals 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AL,I 


DECISION 


REGISTER CITATION 


98 0SP 1432 


Reilly 


06/18/99 




99 OSP 0053 


Momson 


06/22/99 




99OSP0129 


Gray 


10/12/99 


14:11 NCR 936 


99 OSP 0147 


Owens 


08/1 1/99 




99 OSP 0278 


Gray 


1 1/04/99 




99 OSP 03 16 


Gray 


10/22/99 




99 OSP 0325 


Owens 


08/25/99 




99 OSP 05 16 


Gray 


08/31/99 




99 OSP 0533 


Mann 


09/24/99 




99 OSP 0609 


Gray 


07/07/99 




99 OSP 067 1 


Gray 


07/13/99 




99 OSP 0673*" 


Gray 


08/16/99 




99 OSP 0763 


Owens 


09/03/99 




99 OSP 1090 


Momson 


1 1/09/99 




99 OSP 1483 


Phipps 


09/22/99 




99 OSP 0456 


Morrison 


06/02/99 




99 OSP 0308 


Phipps 


06/11/99 




99 OSP 0667 


Gray 


07/28/99 




99 OSP 0189 


Wade 


09/04/99 




99 OSP 0273 


Gray 


08/04/99 




99 OSP 0691 


Reilly 


08/16/99 




98 OSP 0836 


Morrison 


05/20/99 




98 OSP 1028 


Gray 


09/30/99 




99 OSP 0034 


Mann 


06/23/99 




99 OSP 0105 


Mann 


06/1 1/99 




99 OSP 0142 


Morrison 


06/08/99 




99 OSP 0156 


Owens 


06/23/99 




99 OSP 0264 


Gray 


08/20/99 




97 OSP 08 19 


Phipps 


08/02/99 




97 OSP 1268*- 


Phipps 


07/06/99 




97 OSP 1269*- 


Phipps 


07/06/99 




97 OSP 1270*- 


Phipps 


07/06/99 




98 OSP 1618 


ReiUy 


06/24/99 




99 OSP 0047 


Wade 


10/08/99 




99 OSP 0517*' 


Reilly 


08/27/99 




99 OSP 0599 


Chess 


07/16/99 




99 OSP 0623*' 


Reilly 


08/27/99 




99 OSP 0674*" 


Gray 


08/16/99 




99 OSP 0686 


Gray 


07/08/99 




99 OSP 0731 


Chess 


09/03/99 




99 OSP 08.^0*" 


Reilly 


08/27/99 




99 OSP 0865 


Chess 


08/24/99 




99 OSP 1208 


Wade 


11/15/99 




99 DOT 0668 


Owens 


07/29/99 




99 UNC 0375 


Momson 


06/21/99 




99 UNC 0540 


Gray 


08/1 1/99 




99 UNC 0563 


Owens 


07/21/99 





1080 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



AGENCY 

Rita Jo Kincaid v. UNC Hospitals 
Rita Jo Kincaid v. UNC Hospitals 
Edna Heath v. UNC Hospitals 



CASE 
NUMBER 

99 UNC 0746*' 
99 UNC 0747*' 
99 UNC 0943 



ALJ 

Reilly 
Reilly 
Chess 



DATE OF 
DECISION 

08/09/99 
08/09/99 
10/15/99 



PUBLISHED DECISION 
REGISTER CITATION 



14.12 



NORTH CAROLINA REGISTER 



December 15, 1999 



1081 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



COUNTY OF BLADEN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

98OSP0914 



L. CLIFTON CARROLL, 

Petitioner, 



NORTH CAROLINA DEPARTMENT OF NATURAL 
RESOURCES, DIVISION OF PARKS AND RECREATION, 

Respondent. 



RECOMMENDED DECISION 



The above entitled contested case was heard before Beecher R. Gray, administrative law judge, on July 30, 1999 in 
Fayetteville, North Carolina. By order entered August 18, 1999, the parties were granted an extension of time to file final written 
arguments and draft proposals until two weeks after receipt of transcripts. Petitioner and Respondent filed written arguments and 
draft proposals on October 6, 1999. 

APPEARANCES 

Petitioner: J. Michael McGuinness, Esq. 

Respondent: Edwin L. Gavin, II, Assistant Attorney General 
Jennifer May-Parker, Assistant Attorney General 

ISSUE 

Whether Respondent had just cause to demote Petitioner for willfully violating Respondent's policies and guidelines by using 
his State vehicle's blue lights and emergency lights and exceeding the posted speed limits for personal gain. 

POST-HEARING MOTIONS 

Petitioner's Motion to Admit Polygraph Evidence 

Petitioner filed a post-hearing motion to admit polygraph evidence offered to show that Petitioner was truthful when he 
testified during the hearing that he did not use profanity with police officers from the Carolina Beach Police Department. Although 
Petitioner's discussion with a Carolina Beach Policeman was the triggering event for Petitioner's later discipline by Respondent, it 
is not an essential element of the principal reason for his demotion for willful violation of Respondent's guidelines and policies 
concerning use of emergency lights and speed restrictions. North Carolina does not recognize polygraph examinations as sufficiently 
trustworthy to be admitted, even when the parties stipulate to admissibility. State v. Grier, 307 N.C. 628, 300 S.E.2d 351 (1983). 
This motion is DENIED. 

Petitioner's Motion to Strike Inadmissible Evidence and to Redact the Inadmissible Evidence from the Transcript 

This Motion seeks to remove evidence adduced by counsel for Respondent during cross-examination of Petitioner. Since 
the DUI Petitioner was asked about is more than ten (10) years old, and the proponent did not give the adverse party notice of its intent 
to use this evidence, I find that Petitioner's motion should be, and the same hereby is, ALLOWED. 

It is hereby ORDERED: All testimony and references to the 1 984 incident about which Petitioner was questioned is removed 
from the record. The transcript of this contested case hearing is redacted to show that all such material is removed, particularly on 
pages 50-61, 118-119, and 120-122 of the transcript. 

FINDINGS OF FACT 



2. 



The parties received notice of hearing more than 15 days prior to the hearing and each stipulated on the record that 
notice was proper. 

Petitioner Clifton Carroll presently is employed as a Park Ranger II with Respondent's Division of Parks and 
Recreation and is assigned to the Fort Fisher State Recreation Area. He has served with the Parks and Recreation 



1082 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



Division approximately 15 years. As of February 21, 1998, Petitioner was a Park Ranger III at Fort Fisher. He has 
not been subjected to prior disciplinary action by the Division. 

3. Mr. Carroll's mother is the only remaining person in his nuclear family; as of February 21, 1998, she was 85 years 
old. She was residing at St. Joseph's of the Pines Rest Home in Southern Pines. Mr. Carroll's mother suffers from 
dementia and is a resident in the Alzheimer's Unit at the rest home. Around February 21, 1998, Mr. Carroll's 
mother began collapsing at the rest home. Approximately a week before February 21, 1998, Mr. Carroll was 
informed that his mother had signs of congestive heart failure. 

4. Asof February 21, 1998, Mr. Carroll had an intensely close relationship with his mother. She is the only remaining 
member of his immediate family. Mr. Carroll considered it as his obligation to take care of his mother. 

5. On Saturday morning, February 21, 1998, Petitioner was on duty in his capacity as a park ranger at Fort Fisher. 
He was supervising a volunteer work project that day which consisted of the placement of a large number of 
Christmas trees into the sand dunes along the beach. Petitioner met with coworkers and approximately 60 
volunteers at 08:00 a.m. to begin the distribution process. 

6. At about 9:20 a.m.. Petitioner received a telephone call on his cell phone from his wife, who informed him that 
someone from the rest home had just called to say that it was necessary to take his mother to the hospital emergency 
room for admission. His wife told him that his mother had collapsed and was unresponsive. Petitioner was told 
that his permission was needed to admit her to the hospital. Petitioner attempted to reach the rest home from his 
cell phone in the Division truck on the beach but was unable to make contact. Petitioner was about two miles down 
the beach from the road at this time. 

7. Petitioner informed his staff and volunteers that he had a personal emergency which required that he leave. He gave 
instructions for completion of the work project and left the beach in the Division truck. On the way out of the area, 
he stopped and explained his situation to Jackie Cullipher, a coworker. Further along the beach toward the road, 
Petitioner encountered Andy Fairbanks, a part-time worker, and explained his personal situation to him. 

8. After informing his volunteers and coworkers about his personal situation with his mother, Petitioner's intention 
was to drive to the Carolina Beach State Park Rangers' Office where his personal car was parked and to attempt 
to contact the rest home or to drive to Southern Pines to take of his mother's immediate needs. 

9. From the Fort Fisher State Recreation Area, it is approximately six (6) miles to the Carolina Beach State Park 
Office. Petitioner traveled in a northerly direction on highway 421 . After entering the city limits of Kure Beach, 
he observed a line of cars in his lane and he turned on his blue lights and emergency lights to help him clear this 
traffic. Petitioner did not turn on his headlights. The traffic did not seem to notice him so he continued to drive 
at 35 MPH. As he left the Kure Beach city limits, he exceeded the 35 MPH posted speed limit by driving 45 MPH. 

10. Petitioner left Kure Beach on Dow Road, a more rural road with a speed limit of 55 MPH. Petitioner speeded up 
to 75 MPH while in the 55 MPH part of Dow Road at a point where he observed that there was no traffic or 
pedestrians and he had a good view of the road for a long distance ahead. 

1 1 . Arriving at the Carolina Beach State Park Office, Petitioner stopped hurriedly in front of the building, leaving skid 
marks approximately 2-3 feet in the sand where he stopped. Petitioner ran into the building, where he could use 
a telephone in private to call the rest home in Southern Pines. Petitioner reached nurse Linda Reynolds in the 
Alzheimer's unit at the nursing home where his mother was. Petitioner spoke at some length with nurse Reynolds 
about the condition of his mother. 

1 2. While Petitioner was on the telephone with nurse Reynolds, one or more Carolina Beach Policemen arrived at the 
Park Office to render assistance, if needed. The Officers knocked loudly on the door approximately four (4) 
different times. The officers could hear that Petitioner was talking on the phone to someone. Upon the fourth 
knock. Petitioner spoke to them through the door in a loud voice asking them to wait until he was off the telephone. 
The Officers could tell that Petitioner was agitated from the sound of his telephone conversation. Corporal Kurt 
Bartley and Detective William Jones both testified that they heard Petitioner use profanity in telling them to wait 
until he was off the telephone. Petitioner testified that he did not use profanity and nurse Reynolds testified that 
she did not hear Petitioner use any profanity even though she heard him shout for the officers to wait until he was 
off the telephone. Detective Jones testified that profanity use was common among police officers. 



14:12 NORTH CAROLINA REGISTER December 15, 1999 1083 

■I 



CONTESTED CASE DECISIONS 



13. Detective William Jones had been attending a traffic stop as back up in Kure Beach when he first saw Petitioner 
come through in the State Park vehicle with its blue lights and emergency lights on and believed that there could 
be some type of law enforcement situation involved, possibly requiring assistance. He followed Petitioner to the 
Carolina Beach State Park Office so as to render assistance, if needed. 

14. When Petitioner finally opened the door, he told Officers Bartley and Jones about the situation with his mother and 
apologized for having caused them to come out to the Park Office. At that point. Officer Bartley and Lt. Jarman 
left the premises, satisfied that there was no police problem present. After the other officers left. Petitioner began 
to question Detective Jones about why the officers had felt it necessary to come out to the Park Office in the first 
place. Detective Jones felt that Petitioner became somewhat indignant about it. 

15. When Detective Jones left the Park Office, he had no intention of writing a report of any kind about the incident. 
After he returned to the Carolina Beach Police Department, he related to others, including Lt. Jarman, the substance 
of his later conversation with Petitioner. Lt. Jarman reacted to this by instructing Detective Jones to write out a 
report and then by personally telephoning Park Superintendent Terri Taylor and complaining that one of her 
Rangers had a bad attitude. After complaining about Petitioner's bad attitude, Lt. Jarman informed Superintendent 
Taylor about Petitioner's trip up highway 421 in State Park vehicle with the blue lights and emergency lights on. 

16. After investigating this incident. Superintendent Taylor caused Petitioner to be demoted from Ranger III to Ranger 
II with a five (5) percent (%) pay decrease for unacceptable personal conduct. Petitioner has a good work record 
with Respondent. He is regarded by Superintendent Taylor as an above average employee. 

17. Respondent maintains a document entitled Law Enforcement Policies and Guidelines to implement its Law 
Enforcement Program within the State parks system. Section 1 2 of Guideline number 4 provides, in pertinent part: 

12.0 USE OF EMERGENCY VEfflCLES 

12.1 Guidelines 

12.1.1 Operation of an emergency vehicle with emergency devices activated may occur; 

1 2. 1 . 1 .6 When necessary while responding to the scene of a fire, accident, or other emergency lights shall remain activated 
at the scene of such incidents when necessary to protect against further injury or property damage. 

12.1.2.3 Serious consideration must always be given to whether the need to operate above the posted speed limit justifies 
the increased danger created when emergency equipment is not fully utilized. In these situations, it must be 
recognized that the officer does not have the legal right of way. At stop or yield devices, speed must be reduced 
or a stop made to insure that the way is clear to proceed. 

12. 1 .3 Emergency vehicles shall be operated with headlights turned on in conjunction with emergency lights and audible 
warning devices. This shall apply to daytime as well as nighttime driving. Headlight fiashers are authorized for 
use during daylight hours. 

1 2. 1 .4 Emergency vehicles may be operated to a maximum of 30 MPH in excess of the posted or prima facie speed limit. 

12.1.6 Prudence and care must be exercised in the area of public buildings, parking lots, intersections, wildlife crossings, 
and other such locations where a potential danger may arise to the public or to Division personnel. Regardless of 
circumstances vehicles must always be operated with due consideration and allowance given for road, traffic and 
weather conditions, the possibility of pedestrians or animals on the roadway and factors influencing the driver's 
physical condition. 

12.1.7 The use of emergency warring devices while transporting sick and injuredshallbeprimarily for the use of gaining 
the right-of-way. 

18. The State Personnel Rules define unacceptable personal conduct as: 

(1) conduct for which no reasonable person should expect to receive prior warning: or 

(2) job-related conduct which constitutes a violation of state or federal law; or 



1084 NORTH CAROLINA REGISTER December 15, 1999 14:12 



CONTESTED CASE DECISIONS 



(3) conviction of a felony or an offense involving moral turpitude that is detrimental to or impacts the 
employee's service to the State; or 

(4) the willful violation of known or written work rules; or 

(5) conduct unbecoming a State employee that is detrimental to State service; or 

(6) the abuse of client)(s), patient(s), student(s) or a person(s) over whom the employee has charge or to 
whom the employee has a responsibility or an animal owned by the State; or 

(7) absence from work after all authorized leave credits and benefits have been exhausted; or 

(8) falsification of a State application or in other employment documentation. 

N.C. Admin. Code tit. 25, r. 01J.0614(h) (June 1996). 

CONCLUSIONS OF LAW 

Based upon the foregoing Findings of Fact, I make the following Conclusions of Law. 

1 . The parties properly are before the Office of Administrative Hearings. 

2. The facts of this case establish that Petitioner held a reasonable belief at the time he drove the State Parks' vehicle from Fort 
Fisher Recreation Area to the Carolina Beach State Park Office that his mother's health and welfare were in imminent collapse 
and that he needed to reach the nursing home by telephone as soon as possible and then drive to the hospital where she had 
been taken. Petitioner's reasonable belief that he could treat the immediate situation as one of necessity which authorized 
him to utilize the vehicle's blue lights and emergency lights to help clear traffic and to exceed the posted speed by 
approximately 20 MPH along an open section of uncrowded road, prevents this from constituting conduct for which no 
reasonable person should expect to receive prior warning. Without the color of authority, Petitioner's actions could constitute 
violations of State law and willful violation of written work rules. While this may be a close question, justice would appear 
to support the proposition that Petitioner could, under the immediate press of what he had been told about his mother's 
collapse, proceed under the same privilege or exception to Respondent's policies and guidelines as he could for some other 
person involved in a health related situation deemed an emergency which might occur at the Fort Fisher Recreation Area or 
elsewhere in the State Parks system. 

3. Petitioner has, under the facts of this case, carried the burden of proof that Respondent did not have adequate just cause to 
demote him from Ranger HI to Ranger II with a five percent loss of salary. Petitioner is entitled to reinstatement, back pay, 
and reasonable attorney's fees. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that Petitioner be reinstated to 
the position of Ranger III, that he receive back pay from the date of his demotion to the time of his reinstatement, that he receive all 
benefits to which he would have become entitled but for the demotion, and that he receive reasonable attorney's fees. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, P.O. Drawer 
27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statutes section 150B-36(b). 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statutes section 1 50B-36(a) to give 
each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those in the 
agency who will make the final decision. 

The agency is required by North Carolina General Statutes section 150B-36(a) to serve a copy of the Final Decision on all 
parties and to furnish a copy to the Parties' attorney of record 



This the 22"" day of October, 1999. 



Beecher R. Gray 
Administrative Law Judge 



14:12 NORTH CAROLINA REGISTER December 15, 1999 1085 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



EM THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

99 OSP 0050 



LARRY A. CAMPBELL, 

Petitioner, 



V. 



N.C. WILDLIFE RESOURCES COMMISSION, 
Respondent. 



RECOMMENDED DECISION 



THIS MATTER was heard before Fred G. Morrison Jr., Senior Administrative Law Judge, on July 26 and 28, 1999. 
Petitioner initiated this eontested ease on January 14, 1999, in order to appeal the December, 1998, decision of the Respondent 
Agency wherein it refused to remove inaccurate and misleading material from the personnel file of Petitioner in violation of N.C. Gen. 
Stat. 1 26-23. In addition, Respondent Agency violated State Personnel Rule 25 NCAC .01 .0100 et seq.. Performance Management 
System when it failed to implement any individualized work plan for Petitioner during the July 1 , 1 997, through June 30, 1 998, work 
cycle but nevertheless issued an unsatisfactory performance management summary rating to him in specific violation of 25 NCAC 
010.0101, .0201-0206. 

APPEARANCES 



For Petitioner: Maola Jones 

Thomas Hilliard, III 

Billiard & Jones 

Post Office Box 25.^05 

Raleigh, North Carolina 2761 1-5305 

For Respondent: C. Norman Young, Jr 

Assistant Attorney General 

N.C. Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

ISSUES 

1. Whether Respondent violated State Personnel Policy regarding Performance Management System, Personnel Rule 25 NCAC 
1 .0 1 1 , 020 1 -0206; .030 1 -.0304 when it issued Petitioner a performance management summary rating for the period July 
1, 1997 through June 30, 1998, a) without following the performance management process (i.e., planning, managing and 
appraising) and b) without adhering to any of the established components of the mandated Performance Management System 
set forth in the rule. 

2. Whether Respondent violated N.C. Gen. Stat. § 126-25 when it refused to remove inaccurate or misleading material from 
Petitioner's personnel file, such material consisting of a performance management summary rating when, in fact, an 
evaluation was not done. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §§ 126-4 and 5; 126-25; 150B-22 et seq.; State Personnel Manual, Performance Management System, 
Section 12; 25 NCACOIO .0101, .0201 -.0206; .0301-.0304 

Based upon the testimony and evidence presented at hearing, and the documents and exhibits received into evidence, the 
undersigned Senior Administrative Law Judge makes the following: 

FINDINGS OF FACT 



1086 



NORTH CAROLINA REGISTER 



December 15, 1999 



14:12 



CONTESTED CASE DECISIONS 



1. Petitioner began his employment with respondent on August 1, 1990, as a personnel officer I (Salary Grade 70) upon 
transferring from the Office of State Personnel. On August 1 , 1 993, petitioner's position was reallocated to Salary Grade 

72T. 

2. From August 1 , 1 990, until July, 1 998, Richard Hamilton, assistant director of the Wildlife Resources Commission, served 
as petitioner's immediate supervisor. 

3. After July, 1998, Carol Batker, personnel analyst, became petitioner's immediate supervisor. 

4. After receiving a Bachelor of Science Degree from North Carolina A&T State University in May, 1977, petitioner served 
in the United States Army for eleven (11) years, eight (8) months. In August, 1987, he received his Master of Business 
Administration degree from Oklahoma City University. 

5. As personnel officer for respondent, petitioner was responsible for recruitment, payroll, training, employee relations, 
personnel records, EEO, health insurance program maintenance and other employee benefits. 

6. FromAugust, 1990, until July, 1998,respondent'sRichardHamiltondevelopedandimplementedonly two(2) individualized 
work plans for petitioner in accordance with the state-mandated Performance Management System. 

7. It was the customary practice of Richard Hamilton to avoid development and implementation of individualized work plans 
for the five (5) division chiefs which he supervised directly. 

8. Respondent's Hamilton issued performance management summary ratings to petitioner and his division chiefs at the end 
of work cycles in the absence of any work plans, interim reviews, planning, managing appraising or evaluation in compliance 
with the performance management process. 

9. A State auditor in the Summer of 1 998 issued to Richard Hamilton an oral management suggestion that individualized work 
plans for his employees during 1997-1998 had not been completed and that such plans should be completed. 

10. During the seven (7) year period from August, 1990, to June, 1997, respondent completed two (2) work plans for petitioner. 
The work cycles for July, 1993, to June, 1994, and July, 1996 to June. 1997 were covered by individualized work plans for 
petitioner. Richard Hamilton and petitioner both signed the work plans on June 22, 1994, and June 20, 1997, respectively. 

1 1 . Petitioner received a performance management summary rating of Outstanding on the work plans ending June, 1 994, and 
June, 1997. On June 20, 1997, Hamilton wrote in Campbell's appraisal instrument: "Employee provides outstanding 
personnel services to the WRC and to its employees through his unique blend of training, experience, and personal 
philosophy. Larry is an advocate for the employee and tries to help them deal with their problems. Employee is committed 
to his job and WRC and is a positive force in our handling of personnel matters, especially those related to equal 
opportunity. Larry does and outstanding job in interfacing with OSP to get results. He knows the business, the people, and 
the ropes." 

12. During the periods when respondent did not develop and implement individualized work plans for petitioner, namely "90-' 9 1 , 
'91 -'92, '94-'95, '95-'96, performance management summary ratings were issued. For each of the four (4) work cycles 
mentioned above, petitioner received a performance rating of Outstanding 

13. For the work cycle 1997-1998, respondent did not develop and implement a work plan for petitioner nor did Hamilton 
perform an interim review or complete the annual performance appraisal with appropriate comments as he had done for 
1996-1997. 

14. Nevertheless, Hamilton had a rating of Unsatisfactory sent to OSP and placed in Larry Campbell's personnel file without 
notice or explanation to him. This rating prevented petitioner from getting a legislative salary increase. 

15. When Campbell learned of this unsatisfactory rating, he requested that it be removed from his file because it was inaccurate 
or misleading. Respondent denied this request. 



14:12 NORTH CAROLINA REGISTER December 15, 1999 1087 



CONTESTED CASE DECISIONS 



CONCLUSIONS OF LAW 

1. Respondent violated its own rules and regulations as well as those of the Office of State Personnel when it issued an 
unsatisfactory rating to Larry Campbell without having a work plan, interim review or annual performance review, and 
written appraisal. 

2. Such rating is inaccurate or misleading in that its existence and submission implies that Respondent's officials had followed 
the rules and procedures necessary to support it. 

3. G.S. § 1 26-25 gives Petitioner the right to seek removal of the rating from his personnel file because it is misleading for the 
above reason. 

4. G.S. § 126-7(c)(7) does provide that disputes about individual performance appraisals shall not be considered contested case 
issues, but this statute does not apply to this case because the Respondent did not initiate or complete a proper performance 
appraisal for the subject year of 1997 - 1998. 

5. Petitioner has a right to this hearing and a recommended decision that the rating be removed because it is misleading. 

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned Senior Administrative Law Judge 
makes the following: 

RECOMMENDED DECISION 

That the State Personnel Commission order Respondent to remove the 1 997 - 1 998 performance management summary rating 
from Petitioner's personnel file. Further, that Respondent be ordered to pay Petitioner 1 ) salary increases and merit raises, etc. equal 
to what he would have received had the performance rating for 1997 - 1998 been outstanding or very good, 2) attorney fees and all 
other benefits to which he was entitled from the July 1998 date forward. Further, that the Commission order Respondent to expunge 
from Petitioner's personnel file all documents related to this action. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative Hearings, Post Office 
Drawer 27447, Raleigh, North Carolina 276 11 -7447, in accordance with N.C. Gen. Stat. § 150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give such party an opportunity to file exceptions 
to this Recommended Decision and to present written arguments to those in the agency who will make the final decision. N.C. Gen. 
Stat. § 150B-36(a). 

The agency is required by N.C. Gen. Stat. § 150B-36(b) to serve a copy of the final decision on all parties and to furnish a 
copy to the parties' attorneys of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the lO"' of November, 1999. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



1088 NORTH CAROLINA REGISTER December 15, 1999 14:12 



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